plant during certain times involved in the complaint. The Complainants further stated that after they were requested to testify before state and federal agencies concerning radiological practices at the Connecticut Yankee plant, they were treated in a derogatory manner, given poor job assignments and treated adversely by management of Northeast and Connecticut Yankee. Finally, the Complainants stated that they had complained to Northeast management regarding their treatment and that Northeast had sent in a team to investigate their complaints and resolve the issues they had raised.

   In response to Connecticut Yankee's motion, the Complainants submitted affidavits which essentially reiterated the allegations in their complaint and supplemental statement of facts. Regarding their non-selection by Connecticut Yankee for full-time Health Physics positions, the Complainants stated that they were informed on June 29, 1998 that they had not been selected and that they learned on or about July 10, 1998 that Doug Roberson had been hired instead of them. Complainants' Response to Connecticut Yankee Motion at 8; Hawkins Affidavit at ¶¶ 37-37; Hemingway Affidavit at ¶¶ 32-33. The Complainants also reiterated their allegations that they continued to suffer retaliation and discrimination between July 1998 and December 1998 by Connecticut Yankee supervision and management. Complainants' Response to Connecticut Yankee Motion at 8-12.

   A. Standard for Summary Decision

   The standard for granting summary decision in matters arising under the ERA is set forth at 20 C.F.R. §18.40(d). This section, which is derived from Fed. R. Civ. P. 56, permits an administrative law judge to recommend summary decision where "there is no genuine issue as to any material fact and . . . a party is entitled to summary decision." Gillilan v. Tennessee Valley Authority, 91-ERA-31 and 34 (Sec'y August 28, 1995), slip op. at 3. While summary decision is permitted under section 18.40(d), the Secretary of Labor has cautioned that summary procedures are to be used sparingly in ERA whistleblower litigation where motive and intent play lead roles and where the presence or absence of a retaliatory motive most often must be proved by circumstantial evidence and the inferences drawn therefrom. Richter v. Baldwin Associates, 84-ERA-9 and 10 (Sec'y March12, 1986), slip op. at 8, citing Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962). Thus, in determining whether a genuine issue of material fact exists, the evidence and factual inferences must be viewed in the light most favorable to the non-moving party. Gillilan, slip op. at 3. See also, OFCCP v. CSX Transp.,Inc., 88-OFC-24 (Asst. Sec'y October 13, 1994), slip op. at 12; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, where a party moving for summary decision has met its burden of showing that there is no genuine issue of material fact, an opposing party must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec., 475 U.S. at 574. Further, it is not enough for the opposing party to rest upon mere allegations or denials of its pleading, but it rather must set forth specific facts showing that there is a genuine issue for the hearing. 18 C.F.R. §18.40(c); Trieber v. Tennessee Valley Auth., 87-ERA-25 (Sec'y September 9, 1993), slip op. at 5, quoting Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986); Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1459 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). The opposing party's evidence, if accepted as true, must support a rational inference that the substantive evidentiary burden of proof could be met, and where an opposing party "presents admissible direct evidence, such as through affidavits, answers to interrogatories, or depositions, the judge must accept the truth of the evidence set forth; no credibility or plausibility determination is permissible." Webb v. Carolina Power & Light Co., 93-ERA-42 (Sec'y July 14, 1995), slip op. at 3. With these guidelines in mind, I will turn now to the issues raised by the Respondents' motions for summary decision and the Complainants' responses in opposition.

   B. Northeast and NNECO

their response, the Complainants assert that "as NU [Northeast] managed the operation of the Connecticut Yankee Atomic Power Plant for a period of time involved in the Complaint, and thus participated in and influenced the employment practices of Connecticut Yankee Atomic Power Company towards Bill Hawkins and Shae Hemingway, there is no basis to dismiss this action against Northeast Utilities and Northeast Nuclear Energy Company." Complainants' Brief in Opposition to Northeast/NNECO Motion for Summary Decision at 6-7.

   The existence of an employment relationship between a complainant and a respondent is an essential element of a valid claim under the ERA. Varnadore v. Oak Ridge National Laboratory (Varnadore III), 95-ERA-1 (ARB June 14, 1996) Slip op. at 36-37 (affirming summary dismissal of respondents who were merely parent companies of the entity which employed the complainant). However, the ARB has held that a parent company may be held liable for violations of the ERA when it acts in the capacity of an employer toward an employee of a subsidiary:

[I]n a hierarchical employment context, an employer that acts in the capacity of employer with regard to a particular employee may be subject to liability under the environmental whistleblower provisions, notwithstanding the fact that employer does not directly compensate or immediately supervise the employee. A parent company or contracting agency acts in the capacity of an employer by establishing, modifying or otherwise interfering with an employee of a subordinate company regarding the employee's compensation, terms, conditions or privileges of employment. For example, the president of a parent company who hires, fires or disciplines an employee of one of its subsidiaries may be deemed an "employer" for purposes of the whistleblower provisions.

Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (ARB February 13, 1997), slip op. at 3 (italics in original).

   Here, the Complainants have alleged without specification or supporting evidence that Northeast was involved in the management of the Connecticut Yankee plant and that it participated in and influenced Connecticut Yankee's employment practices. They have neither alleged nor presented any evidence that either Northeast or NNECO established, modified or otherwise interfered with them regarding their compensation, terms, conditions or privileges of employment. Their affidavits do not identify any conduct by Northeast or NNECO aside from investigating their complaints, and they admitted in their deposition testimony that none of the individuals whom they have accused of engaging in adverse employment actions are employed by Northeast or NNECO. Hemingway Deposition at 232-238; Hawkins Deposition at 320-321. Indeed, Hemingway conceded during his deposition that he didn't know what type of entity Northeast is or whether NNECO has anything to do with Connecticut Yankee. Hemingway Deposition at 232-233. In the absence of any facts which, when viewed in a light most favorable to the Complainants would support a finding that Northeast or NNECO interfered in the Complainant's employment at Connecticut Yankee, I find that the Complainants have presented no

genuine issue of material fact for hearing and that Northeast and NNECO are, therefore, entitled as a matter of law to a judgement dismissing them as respondents to this matter. Freels v. Lockheed Martin Energy Systems, Inc., 94-ERA-6, 95-CAA-2 (ARB December 4, 1996), slip op. at 9-10, aff'd sub nom, Freels v. Secretary of Labor, Nos. 97-3117 and 97-3883 (6th Cir. Oct. 17, 1997) (unpublished).

   C. Timeliness

   The employee protection provisions of the ERA, as amended, and the regulations implementing these provisions mandate that any complaint shall be filed in writing within 180 days after the occurrence of the alleged violation. 42 U.S.C. §5851(b)(1) (1994); 29 C.F.R. §§24.3(b). The limitation period begins to run on the date when facts which would support the discrimination complaint were apparent or should have been apparent to a person similarly situated to the complainant with a reasonably prudent regard for his rights. Ross v. Florida Power & Light Company, 96-ERA-36 (ARB March 3, 1999), slip op. at 4; McGough v. U.S. Navy, 86- ERA-18, 19, and 20 (Sec'y June 30, 1988), slip op. at 9-10. In other words, the time period for filing an ERA complaint begins on the date that the employee is given final and unequivocal notice of the employer's employment decision; Ross, slip op. at 4; English v. General Electric, 85- ERA-2 (Under Sec'y January 13, 1987), slip op. at 6, aff'd sub nom. English v. Whitfield, 858 F.2d 957 (4th Cir. 1988); not the point at which the consequences of the decision become painful to the employee. Chardon v. Fernandez, 454 U.S. 6, 9 (1981); Delaware State College v. Ricks, 449 U. S. 250 (1980).

   There are, however, two recognized exceptions to the general rule that the limitations period begins to run from the date that a complainant learns of an employer's final decision. One exception is doctrine of "equitable tolling" under which the running of a limitation period can be tolled where a duly diligent employee is excusably ignorant of his or her rights. See Lastre v. Veterans Administration Lakeside Medical Center, 87-ERA-42, slip op. at 2-4 (Sec'y March 31, 1988); School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-21 (3rd Cir. 1981). The Complainants have not asserted that equitable tolling is applicable, and I find no facts alleged in their complaint, supplemental statement of facts, affidavits or deposition testimony that would support a finding that they were excusably ignorant of their rights to file a complaint alleging retaliation against them in violation of the ERA.

   The other exception is the "continuing violation" doctrine under which a timely charge with respect to any incident of discrimination in furtherance of a policy of discrimination renders claims against other discriminatory actions taken pursuant to that policy timely, even if such claims, standing alone, would be untimely. Connecticut Light & Power Co. v. Secretary of Labor, 85 F.3d 89, 96 (2nd Cir. 1996); Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2nd Cir. 1993), cert. denied, 511 U.S. 1052 (1994). In Connecticut Light & Power, an ERA case, the Second Circuit held that a continuing violation exists where there is a relationship between a series of

discriminatory actions and an invalid, underlying policy: "[t]hus, in cases where the plaintiff proves i) an underlying discriminatory policy or practice, and ii) an action taken pursuant to that policy during the statutory period preceding the filing of the complaint, the continuing violation rule shelters claims for all other actions taken pursuant to the same policy from the limitations period." 85 F.3d at 96. The challenged practice in Connecticut Light & Power involved a negotiation tactic employed over a period of months by which the respondent allegedly attempted to coercively induce the complainant into relinquishing or restricting his ability to communicate with federal regulatory agencies. The Court distinguished this type of conduct from a "discrete" employment decision and found the continuing violation exception applicable. Id. The Secretary of Labor has also recognized the continuing violation exception in cases "[w]here the unlawful employment practice manifests itself over time, rather than as a series of discrete acts." McCuistion v. Tennessee Valley Authority, 89-ERA-6 (Sec'y November 13, 1991), slip op. at 8-9, citing Waltman v. Intern. Paper Co., 875 F.2d 468, 474 (5th Cir. 1989). In McCuistion, the Secretary considered three factors to determine whether alleged violations were continuing in nature: (1) subject matter do the acts involve the same type of discrimination, tending to connect them in a continuing violation?; (2) frequency are the acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision?; and (3) degree of permanence does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate? Slip op. at 9 (citations omitted). Applying these factors, the Secretary found that challenged actions (a disciplinary letter, an unsatisfactory appraisal, a withheld pay increase, blacklisting, and termination) involved the same type of discrimination in retaliation for protected activities, and had recurred over a 12-month period. However, the Secretary further found that while these actions represented a continuing campaign of harassment against the complainant, the disciplinary letter and the unsatisfactory appraisal which effectively denied the complainant a pay increase were sufficiently permanent to trigger the complainant's awareness of the respondent's discriminatory motivation. Thus, the Secretary declined to apply the continuing violation exception to these discrete actions which had occurred outside of the limitation period. Slip op. at 10. However, the Secretary did note that "evidence of discriminatory actions antedating the filing period but found not to be continuing violations nevertheless may constitute relevant background evidence which may illuminate . . . present patterns of behavior." Slip op. at 10-11 (citation omitted).

   After careful consideration of the complaint, the Complainants' supplemental statement of facts, their responses to the motions for summary decision and their affidavits and deposition testimony, I have determined that the lay-off of Hawkins from the Connecticut Yankee Plant in or around January 1997, the transfer of Hawkins from the Health Physics Department to the Radiation Engineering Department and Connecticut Yankee's failure to hire Hemingway and Hawkins as full-time Health Physics Aides in June 1998, like the disciplinary letter and unsatisfactory appraisal involved in McCuistion, were discrete actions and were sufficiently permanent to trigger the Complainants' awareness of the Respondents' discriminatory motivation. See also, Gilillian v. Tennessee Valley Authority, 92-ERA-46 and 50 (Sec'y April 20, 1995), slip op. at 3. As such, these actions may not be

viewed as part of a continuing violation despite their relationship to an alleged pattern of unlawful discrimination and retaliation, and they may not form the basis for relief or a finding of a violation of the ERA unless they occurred within the limitation period which began on July 4, 1998, 180 days prior to the filing of the complaint on December 31, 1998.

   With regard to the lay-off allegation, the undisputed evidence shows that Hawkins was laid off by as a Health Physics Aide at the Connecticut Yankee plant from January 31, 1997 to May 1997 when he was called back to work. Hawkins Deposition at 129, 137. Clearly, he had final and unequivocal notice of this action long before the commencement of the limitation period. Accordingly, this allegation is time-barred, as is any allegation that Connecticut Yankee attempted to prevent Hawkins from returning to its plant (see Hawkins Deposition at 132-137).

evidence further establishes that Hawkins had final and unequivocal notice outside of the limitation period. In this regard, Hawkins testified at his deposition that he requested a transfer out of Health Physics and that he was "thrilled" to get the position in Radiation Engineering because he would be working for Rich McGrath and doing something else. He also acknowledged that the transfer to Radiation Engineering involved a promotion and a pay increase, and he testified that he learned of the transfer in a meeting with Rich McGrath. Hawkins Deposition at 142-145. Payroll records from Bartlett reflect that the pay increase from $23.50 to $28.00 per hour which Hawkins received in connection with the transfer to Radiation Engineering was effective on June 29, 1998. Connecticut Yankee Consolidated Exhibit Binder, Exhibit G. Taken together, this evidence convincingly establishes that Hawkins had final and unequivocal notice of the transfer by no later than June 29, 1998. Since the Complainants have offered no evidence to substantiate their claim in the supplemental statement of facts that Hawkins was not transferred until sometime after July 10, 1998, I find that the Complainants can not prevail in proving that their complaint is timely with respect to the transfer allegation.

    On the other hand, I conclude that the remaining allegations in the complaint which pre-date the limitation period are continuing in nature in that they involve a similar subject matter (i.e., workplace harassment, intimidation and discrimination), were recurring and lacked permanency of discrete actions such as lay-off, transfer or refusal to hire. Specifically, these alleged violations consist of harassment and intimidation of Hemingway and Hawkins by Connecticut Yankee supervisors and managers, disparate treatment of Hemingway in comparison to the three new Health Physics technicians, providing Hawkins with a cursory and discriminatory exposure review in July 1997, and treating Hemingway and Hawkins as outcasts and giving them adverse work assignments during August 1997. Complaint at ¶¶ 33, 44, 46-47, 48-51. Accordingly, these allegations may be considered provided that the Complainants prove that the Respondents maintained an underlying discriminatory policy or practice, and that there was an action taken pursuant to that policy during the statutory period preceding the filing of the complaint. Connecticut Light & Power, 85 F.3d at 96. In addition, there are several allegations, as quoted above from the Complainants' supplemental statement of facts which clearly post-date July 4, 1998 and are, consequently, timely. I will turn now to consideration of the motion for summary decision with respect to those allegations.

   D. Alleged Retaliatory Acts within the Limitation Period

    In order to prevail under the employee protection provision of the ERA, the Complainants must prove by a preponderance of the evidence that: (1) they engaged in activity protected by the ERA; (2) the Respondents took an adverse action against them; and (3) their ERA-protected activity was a contributing factor in the adverse action that was taken. See Paynes v. Gulf States Utilities Co., 93-ERA-47 (ARB August 31, 1999), slip op. at 4; Dysert v. Secretary of Labor, 105 F.3d 607 (11th Cir. 1997); Simon v. Simmons Foods, Inc., 49 F.3d 386 (8th Cir. 1995).

   Connecticut Yankee does not dispute that the Complainants engaged in activities protected by the ERA. Thus, the first element of their claim is established. As for adverse actions within the 180-day limitation period, the Complainants have alleged that: (1) they were discriminatorily assigned

to difficult and hazardous work in the pipe trench and RHR pit area; (2) Hemingway was not trained for shift qualification, despite his request and other employees (Doug Roberson) receiving the training; (3) Hemingway was assigned by Rick Gault to work in the "bone yard" where no power, heat or light was available because Gault "stonewalled" the work orders to install power to the site; (4) Hemingway was discriminatorily denied vacation time and days off; (5) Hemingway has only been assigned to the shift for one day despite his being shift qualified since September 1998, while less qualified, newer employees such as Cindy Pye, have been assigned to shift duty; (6) Hemingway has never been paid extra pay for shift qualification, despite complaints to Rick Gault; (7) Hawkins has continued to be criticized by Gault when Hawkins has called upon Gault to take appropriate action for H.P. Technicians' failure to comply with Radiation Safety Reviews drawn by Mr. Hawkins; and (8) Hawkins has suffered the chilling effect of the failure of Connecticut Yankee management to support his Radiation Engineering activities and safety concerns from July 1998 through the present time. Supplemental Statement of Facts at ¶¶ 6-7, 9-10, 13, 15-19.

       1. Alleged Retaliatory Work Assignments

   At their depositions, both Complainants were questioned regarding their allegations that Connecticut Yankee has discriminated against them by assigning them to hazardous and undesirable work. In response to these questions, Hemingway testified that he believed that the following work assignments constituted adverse retaliatory employment actions: (1) work in the pipe trench, RHR pit, bone yard and spent fuel building; (2) surveying trucks entering the power plant; (3) outside work in inclement weather; and (4) work under NRC scrutiny. Hemingway Deposition at 21, 185-195, 202-203, 207. Hawkins testified that Connecticut Yankee discriminated against him by making the following assignments: (1) work in the RWST tank; (2) work in the RHR pit; (3) performing an outdoor filter change during the winter; (4) work under NRC scrutiny; and (5) work in the pipe trench. Hawkins Deposition at 218-222, 230.

   As an initial matter, I note that the evidence of record establishes that Hawkins' assignment the RWST tank and the outside filter change job both occurred well outside of the 180-day limitation period. In this regard, an April 21, 1998 memorandum between Connecticut Yankee officials indicates that Hawkins received his May 1998 pay increase in part because of his performance while assigned to the RWST tank:

I am recommending that Bill Hawkins be upgraded in the Bartlett job classification to DB. This is based on his continual high job performance . . . the level of detail that Bill placed in the procedural development prompted me to assign him to the RWST draining, cleaning . . . and Instacoat application . . . This resulted in both jobs going extremely well.

Gault Affidavit, Exhibit B. Thus, it is clear that Hawkins was assigned to work in the RWST tank prior to July 4, 1998. Similarly, the evidence shows that Hawkins was assigned to perform the outside filter change, along with a Connecticut Yankee employee and Connecticut Yankee supervisor Rick Gault, during the winter of 1997-1998, long before the beginning of the limitation period. Gualt Affidavit at ¶ 9. In the absence of any evidence from the Complainants that these assignments took place within

the limitation period, I find that they may only be considered as part of a continuing violation in the event that the Complainants prove that the Connecticut Yankee maintained a discriminatory policy or practice, and that there was an action taken pursuant to that policy or practice during the statutory limitation period

   Regarding the assignments to the pipe trench, Hawkins testified at his deposition that he was the first Health Physics Technician who was sent into the pipe trench to investigate the chemical spill. He did not know why he was selected but acknowledged that the decision could have been based on his skills and the fact that he was highly regarded as a technician. He further testified that several other Health Physics Technicians were sent into the pipe trench to respond to the chemical spill and that he was not the only one exposed to danger before a hazardous material team was called to the area. Hawkins Deposition at 254-260. Hawkins was unsure whether Doug Roberson or Rick Gault had assigned him to work in the pipe trench, but he stated that he did not believe that Roberson would ever retaliate against him. Id. at 261-62. Hemingway testified that he was assigned to work in the pipe trench by Roberson and Gault after Hawkins had performed the initial survey. He stated that he was not alleging that Roberson had retaliated against him because of his protected activities; however, he testified that believed Gault had retaliated against him because Gault assigned him to accompany other Health Physics Technicians who were only required to make one or two two-hour dives into the pipe trench during a shift while he spent the entire shift in the area. He also testified that he was the only Health Physics Technician who was required to work in the pipe trench during the day shift. Hemingway Deposition at 186-192.

   Hawkins and Hemingway both acknowledged that the work they performed in the pipe trench was within the scope of their duties as Health Physics Technicians and that other Health Physics Technicians would have been required to perform the work if they had not been assigned to the pipe trench. Indeed, they acknowledged that all of the assignments which they have alleged to be retaliatory were within the scope of a Health Physics Technician's duties, that other Health Physics Technicians performed the same or similar assignments, and that none of these assignments involved any loss of pay, diminution of responsibility or demotion. Hemingway Deposition at 141-142, 189-191, 194- 195, 202, 207, 280-281; Hawkins Deposition at 218-225, 328. More particularly, Hemingway acknowledged that other Health Physics Technicians were assigned to work outside in inclement weather and every Health Physics Technician during the periods in question worked under heightened NRC scrutiny. Hemingway Deposition at 124-125, 156-158, 278-281. Both Complainants also testified that no Connecticut Yankee official had made any statement linking their protected activities to any of the allegedly retaliatory work assignments. Hemingway Deposition at 143-145; Hawkins Deposition at 221- 222. Neither could identify any facts, other that the assignments themselves, to support their allegation that these assignments were retaliatory. Rather, they conceded that they simply based their allegations on the belief and assumption that the assignments were made in retaliation for their protected activities. Hemingway Deposition at 191-192, 204; Hawkins Deposition at 221.

   In support of its motion for summary decision, Connecticut Yankee submitted documentary evidence and affidavits from Connecticut Yankee officials in addition to the deposition testimony of the Complainants. Rick Gault, the supervisor of radiation protection in the Health Physics

Department, stated in his affidavit that assignments are made in a manner to ensure productive and efficient completion of Health Physics work and that Hemingway and Hawkins performed normal Health Physics duties similar to the duties assigned to other Health Physics Technicians. He further stated that work assignments are based on availability, skills and the need to complete the job and that he assigned particularly difficult and safety-sensitive jobs to Hawkins because he had a high level of confidence in Hawkins's abilities and believed that he would perform the work safely and efficiently. Gault Affidavit at ¶ 28. Gault denied that he ever based any assignment on the Complainants' protected activity, and he asserted that he never considered their protected activity as a factor when making job assignments. Id. at ¶ 32.

   Richard Sexton, Connecticut Yankee's Health Physics and Safety Manager, Department. He further stated in his affidavit that a health Physics Technician's duties frequently require work in confined and uncomfortable conditions with exposure to occupational hazards in such areas as the containment area, the pipe trench, the residual heat removal ("RHR") pit, the refueling waste storage tank ("RHST"), the primary auxiliary building and the RCA yard. Sexton Affidavit at ¶ 7. He further testified that Health Physics Technicians conduct routine surveys which are often performed outside in the elements on vehicles and equipment entering and leaving the site and that many routine plant operations such as filter change-out, valve operations and maintenance are performed outside and require support of Health Physics Technicians. Id. at ¶ 6. He too denied that the Complainant's protected activity had ever been a factor in any employment decision. Id. at ¶ 25.

   The evidence offered by Connecticut Yankee additionally shows that during the time frame covered by the complaint, Hemingway received Spot Recognition awards in February 1998 ($100.00) and in May 1999 ($200.00) and a pay increase in April 1998, and Hawkins received a $200.00 Spot Recognition award in October 1998 and pay increases in May and June 1998. Sexton Affidavit at ¶¶ 16, 20; Connecticut Yankee Consolidated Exhibit Binder, Exhibit G. Connecticut Yankee's evidence also shows that 26 of 28 Bartlett Health Physics contract employees were laid off from the Connecticut Yankee plant between October 1996 and January 1, 1997 and that Hawkins was the last employee to be laid off on January 31, 1997, leaving only Hemingway who was retained based on his earlier starting date. Connecticut Yankee Consolidated Exhibit Binder, Exhibit I. Finally, Connecticut Yankee's evidence shows that Hemingway was promoted to Lead Health Physics Technician with a corresponding pay increase in November 1996. Sexton Affidavit at ¶ 20.

   The foregoing discussion of the evidence shows that the Complainants have not produced any evidence, aside from the fact that they were given various work assignments, to support their allegations that these assignments constituted retaliation for their protected activities. Connecticut Yankee, on the other hand, has produced evidence in the form of the affidavits and the Complainants' own deposition testimony which establishes that the complained of assignments involved duties normally assigned to Health Physics Technicians, that other Health Physics Technicians were given the same or similar assignments and worked under the same or similar conditions and that other Health Physics Technicians would have had to perform the Complainants' work if they had not been given the

   Hemingway also complains that he was discriminatorily denied vacation time and days off. The allegation regarding days off arises from an incident in September 1998 when Hemingway states that Rick Gault scheduled for a fire drill assignment on a Friday which is not a scheduled work day for Health Physics Technicians. Hemingway testified that participation in three or four fire drills per year is required to maintain shift qualification, and he did not know whether any other contract Health Physics Technicians were scheduled to participate in the Friday drill. He further testified that Gault gave him the option of participating in the drill on an evening which he did so that he did not have to report for the drill on Friday after all. Although he maintained that Gault scheduled the fire drill for a Friday to retaliate against him, he could offer no facts to substantiate his allegation. Hemingway Deposition at 210-213. Regarding the vacation time allegation, Hemingway testified that he asked Gault for time off in January 1998, and Gault told him that he did not think he could have the time off because they were going to be busy. Hemingway did not know whether any other employees were given time off in January 1998, and he stated that he later got a week off in April 1998 by going to another manager, Jay Tarzia. Hemingway asserted that he never heard of another employee being denied time off and that the denial of vacation time in January 1998 was discriminatory because there was no other reason for the denial, but he again was unable to offer any facts to support his belief. Id. at 207-210.

30. I was subjected to harassment and intimidation by CY Health Physics Management when I attempted to insist upon procedural compliance in the conduct of Health Physics investigations.

* * * * *

34. Each CY Health Physics Technician, either contractor or employee, were [sic] given specific notice that they were to comply with all procedures in existence for the conduct of Health Physics activities.

35. Thereafter, I was directed to ignore procedural compliance when it was inconvenient to the time schedule of CY Health Physics management.

* * * * *

39. I was continued [sic] to be criticized by Mr. Gault when I called upon Mr. Gault to take action appropriate action [sic] such as the creation of ACRs for discipline for Health Physics Technician's failure to comply with RAD Safety Reviews prepared by me.

40. I have suffered the chilling effect of the failure of CY management to support its Radiation Engineering activities and safety concerns in July 1998.

Hawkins Affidavit at ¶¶ 30,34,35,39,40. Allegations of this nature which do not involve "tangible job detriment" are appropriately considered under the "hostile work environment" analysis articulated by the Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), and refined in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1, 94-CAA-2 and 3, 95-ERA-1 (ARB June 14, 1996), slip op. at 9. In Harris, which arose under Title VII of the Civil Rights Act of 1964, the Court considered the question of when employer conduct which does not result in tangible job harm is sufficiently egregious to be actionable, and it elected to middle road between making actionable any conduct that is offensive to an employee and requiring the conduct to cause a tangible psychological injury:

This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, "mere utterance of an ... epithet which engenders offensive feelings in a employee," ibid. (internal quotation marks omitted) does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation. But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality.

510 U.S. at 21-22. Connecticut Yankee asserts that Hawkins has proffered no material, probative facts to support his generalized allegations of harassment and intimidation. Connecticut Yankee Brief in Support of Motion for Summary Decision at 30. After careful review of the entire record, I must agree. Beyond the broad allegations quoted above from his affidavit, Hawkins has offered nothing in the way of facts which, when viewed in a light most favorable to the Complainants, would support a finding that Connecticut Yankee engaged in such severe and pervasive conduct directed toward his protected activity as would create what any reasonable person would perceive as an objectively hostile or abusive work environment. Indeed, in his lengthy deposition testimony, Hawkins only identifies two incidents which would appear to be related to these allegations. In one incident, Hawkins testified that Gault failed to completely brief two technicians on required procedures, which Hawkins had apparently written, resulting procedural non-compliance. Hawkins Deposition at 250-252. In the second incident, which Hawkins characterized as having a "chilling effect", he testified that he informed management officials Jay Tarzia and Dick Sexton that there were problems with a dive that was scheduled to take place the following day which could result in issuance [by the NRC] of a corrective action letter, and that he was ashamed to be a part of an Health Physics group that was running around like decapitated chickens. According to Hawkins, Tarzia and Sexton responded that they were going to do what they wished and that he would do as he was told. He further testified that management proceeded with the dive and, when he reported that several criteria for terminating the dive were present and that they were not operating in verbatim compliance with the dive procedure, Tarzia and Gault refused to terminate the dive and stated that they would write an ACR the next day stating that the procedure did not work. Id. at 264- 266. When asked how this incident affected him, Hawkins replied,

A. I'm working as an HP tech, trying to do my job, follow procedures, and I'm being told by my supervisors and managers don't follow the procedures. That's bad. How could I do a job and follow the procedure when the supervisor and manager why have a procedure if I'm being told not to follow it? So I think as far as verbatim compliance, as I have been told, you're going to lose your job, you have 60 days, the stuff that I had seen, follow procedures or else, I'm following procedures and my supervisors and management says don't follow them. I feel that should be enough.

Id. at 266. While disregard of procedures designed to ensure the health and safety of employees as well as the general public can not be condoned, and while I am sympathetic to the frustration that Hawkins must have experienced at what appeared to him to have been a blatant example of management misconduct, these incidents, which I have assumed to have occurred as described by Hawkins, are not enough and fall well short of the type of severe and pervasive conduct necessary to create an environment that is objectively hostile and abusive toward protected activity. That is, the facts, viewed in a light most favorable to the Complainants, don't even remotely approach a showing that the

Connecticut Yankee plant was a "workplace is permeated with . . . discriminatory intimidation, ridicule, and insult . . . that is . . . sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . .." Harris, 510 U.S. at 21 (citations and internal quotations omitted). Therefore, I find that the Complainants have not demonstrated that there is a genuine issue of material fact present to justify allowing their allegations of intimidation and harassment to proceed to hearing.

   Lastly, Hawkins also stated in his affidavit that he had requested Fire Brigade training but was not allowed to attend while other Bartlett contract employees with less Connecticut Yankee experience were allowed to attend. Hawkins Affidavit at ¶ 30. Although this allegation is not raised in the complaint or in the supplemental statement of facts, it is considered properly before me as it was covered at Hawkins's deposition and addressed by Connecticut Yankee in its motion for summary decision. See, MacLeod v. Los Alamos National Laboratory, 94-CAA-18 (ARB April 23, 1997), slip op. at 7-8, citing Yellow Freight Systems, Inc. v. Martin, 954 F.2d 353, 358-59 (6th Cir. 1992) (unpleaded issue may be tried by implied consent). A discriminatory denial of training can constitute an actionable adverse employment action. Studer v. Flowers Baking Company of Tennessee, Inc., 93-CAA-11 (Sec'y June 19, 1995), slip op. at 3. The motion for summary decision is supported by the affidavit of radiation protection supervisor Gault who stated that he offered Hawkins an opportunity to attend fire brigade training and that Hawkins abandoned his pursuit of the training when he learned that it would not result in a wage increase. Gault Affidavit at ¶ 23. Hawkins denied at his deposition that he had ever received an "offer" of fire brigade training from Gault. Rather, he testified that Gault has asked him, along with Hemingway and Doug Roberson, to indicate when they wanted to schedule their shift qualification training which included the fire brigade training. Hawkins Deposition at 243-244. However, he did not contradict Gault's statement that he had abandoned his pursuit of the training when he discovered that it would not net him a wage increase. In this regard, Hawkins testified:

A. I was asked, like I said, two time. I was asked by Mr. Gault, myself and Mr. Hemingway and Mr. Roberson, to decide what we wanted for money and everything else, to decide when we wanted to go.

Q. Did you give an answer?

A. Yes.

Q. What was your answer?

A. We discussed, both Shae [Hemingway] and I and Doug Roberson, that we wanted more money, equivalent to the house technicians, and any incentive bonuses that the rest of the contractors, contractors might be offered during the decommissioning.

Id. at 244. Hawkins acknowledged that Connecticut Yankee was under no obligation to have contract Health Physics Technicians attend fire brigade training or to send him for training, and he could

not identify any other contract Health Physics Technician who had ever negotiated with Connecticut Yankee for the same pay and other terms and conditions of employment as enjoyed by regular Connecticut Yankee employees. Id. at 244-245. Viewed in a light most favorable to the Complainants, the evidence shows that Hawkins and Hemingway were treated with respect to fire brigade training in the same manner as another similarly-situated individual, Doug Roberson who ironically is identified by the Complainants as the beneficiary of Connecticut Yankee's discriminatory decision not to hire either of them for the full-time Health Physics Technician position. The Complainants have offered no evidence that they were treated differently with respect to training and compensation, and Hawkins has not contradicted Gault's statement that he abandoned his interest in the fire brigade training when Connecticut Yankee declined to pay him (or any other contract Health Physics Technician) for attending such training. Under these circumstances, it is clear that the Complainant's have not presented any genuine issue of material fact in connection with this allegation.

   Having determined for the reasons discussed above that the Complainants have not set forth specific facts showing that there is a genuine issue for trial, I conclude that the Respondents are entitled to summary decision.

   The motions for summary decision filed by Northeast Utilities and Northeast Nuclear Energy Company and by the Connecticut Yankee Atomic Power Company are GRANTED, and the hearing currently scheduled for the week of May 15, 2000 is CANCELED. Further, IT IS RECOMMENDED that the complaint filed in this matter be dismissed in its entirety.

      Daniel F. Sutton
      Administrative Law Judge

Camden, New Jersey

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).