See Gutierrez v. Regents of the Univ. of California, ARB No. 99-116, ALJ No. 98-ERA-19, slip op. at 3 (ARB Nov. 1999), citing School Dist. of the City of Allentown v. Marshall, 657 F.2d 16, 18 (3d Cir. 1981). The ALJ concluded that none of these circumstances are present in this case, and we agree. Therefore, tolling the limitations period for conduct occurring before September 2, 1998, is unwarranted.
Ilgenfritz's complaint fairs no better under the continuing violation doctrine. In a case arising under the Energy Reorganization Act, the Second Circuit offered this characterization of the applicable standard for finding a continuing violation in a whistleblower action:
Under the continuing violation standard, 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 they would be untimely if standing alone. A continuing violation exists where there is a relationship between a series of discriminatory actions and an invalid, underlying policy. Thus 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.
Connecticut Light & Power Co. v. Secretary of the U.S. Dep't of Labor, 85 F.3d 89, 96 (2d Cir. 1996) (citations omitted), quoted in Overall, slip op. at 46. Accord Berkman, slip op. at 14-15; Varnadore, slip op. at 61, 66.
Like the ALJ, we find that the continuing violation doctrine is inapplicable on the facts of this case. There was no prolonged employer decision-making process that made it difficult for Ilgenfritz to determine the actual dates of the allegedly discriminatory acts, nor can we discern any underlying policy or pattern of discrimination. The acts of which Ilgenfritz complains were discrete and varied in kind, and were implemented by several different supervisors in his chain of command. Most of the complained-of actions were distant in time from Ilgenfritz's filing of his complaint following his termination -- in some instances, by multiple years -- lending weight to the ALJ's conclusion that these earlier events were unrelated to his later termination. Based on these facts, we see no basis upon which to toll the limitations period because of a continuing violation.
[Page 8]
There are only two allegations in Ilgenfritz's complaint that were timely filed: (a) his allegation regarding the performance evaluation for the April 1996 to March 1997 rating period, and (b) his termination. With regard to the performance evaluation, Ilgenfritz complains that, although his overall rating was "proficient," the evaluation contained several negative comments. Although Ilgenfritz obviously found the comments less than flattering, "not everything that makes an employee unhappy is an actionable adverse action." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). In order to be actionable, the action must implicate some tangible job consequence. Shelton v. Oak Ridge Nat'l Laboratories, ARB No. 98-100, ALJ No. 95-CAA-19, slip op. at 8-9 (ARB Mar. 30, 2001).
Ilgenfritz has not demonstrated that his performance evaluation played any role in Respondent's decision to terminate him. In fact, Ilgenfritz has not shown that his performance evaluation had any tangible job consequences whatsoever. A negative performance evaluation, absent tangible job consequences, is not an adverse action. Oest v. Illinois Dep't of Corrections, 240 F.3d 605 (7th Cir. 2001); Lucas v. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001). As the Eleventh Circuit has noted:
Employer criticism, like employer praise, is an ordinary and appropriate feature of the workplace. Expanding the scope of Title VII to permit discrimination lawsuits predicated only on unwelcome day-to-day critiques and assertedly unjustified negative evaluations would threaten the flow of communication between employees and supervisors and limit an employer's ability to maintain and improve job performance. Federal courts ought not be in the position of monitoring and second-guessing the feedback that an employer gives, and should be encouraged to give, an employee.
Davis v. Town of Lake Park, 245 F.3d 1232, 1242 (11th Cir. 2001).
As for the termination action, Mary Hafey, the Staff Advisor for the Coast Guard personnel command, testified that if an employee is still incapacitated after having been in a leave without pay status for over one year, then it is appropriate to initiate a removal action. The decision to initiate the process was based on Stephanos' recommendation. Stephanos testified that he made that recommendation based solely on the desire to fill the position with a permanent employee and that it had nothing to do with Ilgenfritz's environmental activities. The ALJ found that testimony credible and so do we. Thus, we find that Ilgenfritz's termination was not the result of unlawful discrimination.
[Page 9]
In summary, Ilgenfritz has not proven that Respondent took adverse action against him in retaliation for his engaging in activity protected under the environmental acts. Therefore, we agree with the ALJ that the complaint should be DISMISSED.
SO ORDERED.
PAUL GREENBERG
Chair
RICHARD A. BEVERLY
Alternate Member
[ENDNOTES]
1 This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).
2 A grit blaster is a machine that removes paint from an object by blasting it off with grit sand directed under pressure. The machine generated hazardous waste and was considered part of a hazardous waste stream.
3 42 U.S.C.A. §9610(b) and 42 U.S.C.A. §6971(b) both provide that "Any employee or a representative of employees who believes that he has been fired or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such alleged violation occurs, apply to the Secretary of Labor for a review of such firing or alleged discrimination."
4 To the extent that Ilgenfritz expected to file a post-hearing brief with the ALJ, or asserts that he was entitled to file a post-hearing brief "as a matter of right," his expectation was unwarranted. The Department's procedural regulations governing whistleblower complaints state, in pertinent part, "Post-hearing briefs will not be permitted except at the request of the administrative law judge." 29 C.F.R. §24.6 (e)(3).
5 Technically, this first basis for "equitable tolling," which involves conduct on the part of a defendant or respondent which causes a complainant to delay the filing of legal action, might be better characterized as a form of "equitable estoppel." See, e.g., Overall v. TVA, ARB Nos. 98-111/128, ALJ No. 97-ERA-53, slip op. at 42-43 (ARB Apr. 30, 2001); Frazier v. Delco Electronics. Corp., No. 99-2710, 2001 WL 964933, at *3 (7th Cir. Aug. 24, 2001).