Grover v. Houston Lighting & Power Co., 92-ERA-4 (ALJ July 28, 1993)

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Grover v. Houston Lighting & Power Co., 92-ERA-4 (ALJ July 28, 1993)

U.S. Department of Labor
Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-0201

DATE: JUL 28 1993
CASE NO. 92-ERA-4

IN THE MATTER OF

CHAMAN L. GROVER
Complainant

HOUSTON LIGHTING & POWER COMPANY
Respondent

Appearances:

On behalf of Complainant

Chaman L. Grover, pro se
2623 Peninsulas Drive
Missouri City, Texas 77459
Complainant

On behalf of Respondent

Ross E. Cockburn, Esq.
Baker & Botts, L.L.P.
One Shell Plaza
910 Louisiana
Houston, Texas 77002-4995

Before: JAMES W. KERR, JR.
Administrative Law Judge

RECOMMENDED DECISION AND ORDER

Procedural History

This case arises under the employee protection provision of the Energy

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Reorganization Act of 1974 (ERA) as amended, 42 U.S.C. § 5851 (1982), and the regulations promulgated thereunder at 20 C.F.R. Part 24. These provisions protect employees against discrimination for attempting to carry out the purposes of the ERA or of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2011 et seq. The Secretary of Labor is empowered to investigate and decide "whistleblower" complaints filed by employees at facilities licensed by the Nuclear Regulatory Commission (NRC) who are discharged or otherwise discriminated against with regard to their terms and conditions of employment for taking any action relating to the fulfillment of safety or other requirements established by the NRC.

Complainant filed a complaint with the U.S. Department of Labor on April 24, 1992. He alleges, in essence, that although he remained employed with Houston Lighting & Power, a "pattern of harassment and disparagement, the failure to promote, transfer, or equitably raise the salary of the Complainant as punishment for his refusal to subordinate his conscience to the convenience of the Respondent in suppressing the safety concerns while performing the protected activities" led to his resignation. (See Brief for Complainant).

On October 28, 1992, the Department of Labor issued a finding that it could not substantiate Complainant's allegations and that "we can discover no evidence that you suffered any discrimination that can be attributed to performance of protected activity." (JX 5). Complainant appealed this finding and requested a formal hearing.

A formal hearing was held in Houston, Texas, on March 3 through March 5, 1993, at which time all parties were afforded full opportunity to present evidence and argument. Both parties submitted post-hearing briefs, admitted hereby as part of the administrative record in this case. This recommended decision is based upon the entire record.

FACTUAL BACKGROUND

Complainant Chaman L. Grover was employed by Respondent Houston Lighting & Power on July 13, 1982, as a Senior Quality Assurance Engineer at the South Texas Nuclear Power Plant near Bay City, Texas. Houston Lighting & Power (HL&P) is the NRC licensee for the South Texas Plant (STP), Units 1 and 2, during construction

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and operation phases.

On March 31, 1992, Complainant resigned, stating, in a letter to Mr. John W. Odom, Manager, Human Resources, STP, that "effective 4/1/92 I am taking an early retirement as I was being harassed, intimidated, demanded to sign the Design Documents without adequate review and discriminated being of Asian Indian origin." (JX 2 p. 1). In that letter, Complainant states as his main complaint that the performance evaluation he was asked to sign on March 12, 1992, was unfair. Further, he claimed that on March 16 and 17, 1992, he was "scolded for not completing all the assignments [design document review]...I simply could not stand this humiliation and character assassination. The next morning (3/18/92) I wrote to Mr. Slabinsky that I want to take early retirement with effect from 4/1/92....I consider my last performance evaluation as character assassination, and demoralization of a Registered Professional Engineer, and racial discrimination." (JX 2).

His overall performance rating was in the category "Needs overall improvement to meets standards for the job." Under "Comments," the evaluation stated that Complainant's "observed performance is inconsistent with his education level, experience, and previous performance." According to the document, the poor review was based on Complainant's inability to reduce an unacceptably large backlog of performance reviews (current assignments were not at issue). According to HL&P, Complainant had been given counseling sessions to try to reduce the backlog, but to no avail.

It is undisputed that April 24, 1992, Complainant mailed a complaint to the U.S. Department of Labor, "Subject: Employment Discrimination for having identified concerns related to construction/operation of South Texas Nuclear Power Plant (STP)."

It is also undisputed that Complainant did not raise any safety or quality concerns with the Nuclear Regulatory Commission or the STP "Safeteam" (Speakout) program of the Human Resources Department, or to any individuals other than his immediate supervisors, during his tenure at STP. Further, Complainant admits that all internal safety and quality concerns he had raised in the past were remediated and adequate corrective measures were taken, and that he did not feel it necessary to complain to the NRC. (See Brief for Complainant at pp. 29-30).

Respondent re-urges its Motion to Dismiss based on

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untimeliness of the claim. Respondent also argues that if the complaint is found to be timely, Complainant has not made out a prima facie case of retaliation.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Timeliness of Claim

The first issue to be addressed is whether Complainant's complaint is time-barred.¹ The commencement date of the limitation period is the date the facts which would support a discrimination complaint were apparent or should have been apparent to a person with reasonably prudent regard for his rights similarly situated to the complainant. See McGough v. United States Navy, ROTC, 86-ERA- 19 (1988); Billings v. Tennessee Valley Authority, 86-ERA-38 (1990).

Complainant alleges that his poor performance evaluation on March 12, 1992, and his being bypassed on other occasions for promotions prior to that date were in retaliation for his reporting of safety and quality concerns.

The doctrine of continuing discrimination or violation does not apply to acts which are consummated immediate violations. See English v. Whitfield, 858 F.2d 957, 962; Gain v. Benchmark Technologies and Toledo Edison Co., 88-ERA-21 (1990). In the present case, each previous instance of non-selection of Complainant for promotion, if proven to be retaliatory, would be independent, consummated immediate violations. Complainant has provided no evidence that any prior non-selection falls within the relevant statutory limitations period (discussed infra). Therefore, Complainant's claim is untimely so insofar as it related to any event prior to March 12, 1992, the date he was presented with the final evaluation.²

The issue is thus narrowed: on what date does the limitations period begin to run, and what is the applicable limitations period for this claim?

Section 210(b) (1) of the ERA, 42 U.S.C. § 5851(b)(1), at the date of filing of Complainant's claim, provided:

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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 thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor...alleging such discharge or discrimination.

In accordance with Section 210, the implementing regulations at 29 C.F.R. § 24.3(b) (1992) state:

Any complaint shall be filed within thirty (30) days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing.

When taken as a whole, Complainant's claim can be considered to allege that on March 17, 1992, he was "harassed" by his supervisor, John Slabinski, while discussing his recent performance appraisal. By his own testimony, it was this act, coupled with the poor performance appraisal, that led to his decision to resign. Thus, the facts which would support a discrimination claim were "reasonably apparent" to Complainant and he is charged with actual knowledge of the conduct on that date.³ Complainant has not alleged discriminatory or retaliatory conduct on the part of HL&P after that date. Thus, the limitations period begins to run on March 17, 1992.⁴

Complainant asserts that his March 31, 1992, letter to John Odom, a copy of which was sent by mail to the NRC, should serve as a "filing of the claim" within the applicable 30-day prescriptive period, even though admittedly the NRC is the wrong forum for adjudicating the "whistleblower" claim.

"[F)iling in the wrong agency by a layman who has not slept on his rights can also toll a statute of limitations...." Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y April 25, 1983). Thus, it must be determined whether the doctrine of "equitable tolling" applies in the present case.

The Secretary of Labor and the courts have identified circumstances under which equitable tolling is appropriate. See Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y September 29, 1989).

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The first two situations, where defendant has actively misled plaintiff respecting the cause of action or plaintiff has in some extraordinary way been prevented from asserting his rights, do not apply to the present case.⁵

The third basis for equitable tolling requires that Complainant raise a "precise statutory claim and issue" in the wrong forum. Even if the March 31, 1992 document could have been considered filing a document with the NRC, the allegations are vague and allege discrimination generally, and do not raise of claim of discriminatory employment action based on engaging in a protected activity under Section 210. See, e.g., Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y September 25, 1990).

In response to receipt of that letter, in a letter dated April 9, 1992, Complainant was instructed:

If you believe you were the subject of employment discrimination for having raised concerns related to the operation of STP to your employer, you have 30 days from the date off the alleged discriminatory act in which to file a written complaint with the U.S. Department of Labor (DOL) under Section 210 of the Energy Reorganization Act. However, if you believe you were the subject of employment discrimination for other reasons, you may file a complaint with the ...EEOC....Regarding your expressed concerns about being pressured to sign design documents without adequate review, we have determined that we need additional information from you before we can proceed with our inquiry into your concerns. I have unsuccessfully attempted to contact you by telephone. Please call me collect... as soon as possible so that we can discuss this matter further. If you should call and I am not available, please leave a message and I will return your call. Sincerely, Russel Wise, Allegations Coordinator.

(Bold in original).

Further, Mr. Wise furnished Complainant with the addresses and telephone numbers of the appropriate divisions of the DOL and EEOC for the region. Thus, the proper procedure was outlined to Complainant and the instructions, including filing times, were

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clear. There is no evidence that Complainant contacted Mr. Wise for further instruction or clarification. Complainant simply failed to act.

In light of the fact that Complainant filed his claim 36 days after the alleged discriminatory act, and has not made a showing that he is entitled to invoke the doctrine of equitable tolling, the Complainant's complaint must be dismissed as time-barred.

No Violation of Section 210

Assuming, arguendo, that Complainant's complaint were not time-barred, he must prove by a preponderance of the evidence that he was the subject of an illegal employment action. In order to establish a prima facie case of retaliation, Complainant must prove each of the following four elements: 1) the employee's engagement in a protected activity; 2) the employer's awareness of the employees' engagement in a protected activity; 3) the employer's subsequent employment action adversely affecting the employee; and 4) that the adverse action followed the protected activity so closely in time as to justify an inference of retaliatory motive. See Couty v. Dole, 886 F.2d 147 (8th Cir. 1989. Under the ERA, the Complainant always bears the burden of proof or persuasion that intentional discrimination has occurred. Darty v. Zack Co., 82- ERA-2 (April 25, 1983), applying Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

Protected Activity

This cases arises within the jurisdiction of the Fifth Circuit U.S. Court of Appeals. In Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), the Court held that "employee conduct which does not involve the employee's contact or involvement with a competent organ of government is not protected under Section 5851," and does not apply to protect employees from repercussion from the filing of purely internal quality control reports or complaints.

This Court is well aware, however, that in other jurisdictions, the filing of purely internal quality control reports is considered a covered activity under Section 5851 of the ERA. [See e.g. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984].

It is undisputed that Complainant made oral complaints to his

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immediate supervisor and challenged his employment review on the review itself. His allegations to the Human Resources Division of HL&P (an internal organization) and to the NRC occurred after the adverse employment action, that is, the poor evaluation, the "harassment of March 17, 1992, and his contemporaneous decision to resign. Thus, under the Fifth Circuit standard enumerated in Brown & Root, supra, Complainant has not engaged in a protected activity, and cannot prove the first element of his prima facie case.

Even under the Mackowiak standard controlling in the Ninth Circuit, Complainant's tardiness and apparent general complaints about lack of time to clear up the backlog of design document reports does not likely constitute "protected activity," in light of the fact that the conditions complained of orally to his immediate supervisor were believed to have been rectified, were not reported as violations until after the adverse employment action, and in any event do not in this case amount to "internal quality control reports."

Knowledge of Protected Activity

There is no evidence of record that anyone with decision- making authority at HL&P had any knowledge of Complainant's reporting of safety or quality control concerns to the NRC prior to the alleged "retaliatory act;" i.e. the poor rating and/or "harassment." Complainant produced no evidence to the contrary. In addition, he was repeatedly counseled about his work backlog, and the rating states that current work is being performed timely. Under the standards of either Brown & Root or Mackowiak, the case would be dismissed and is hereby recommended for dismissal for failure to meet the second prong of the prima facie case.

Action Adversely Affecting Complainant

Assuming, arguendo, that Complainant had proved the first two elements of his prima facie case, it is indisputable that Complainant voluntarily retired, and has not succeeded in proving that he was in any way "forced out" or "resigned under pressure." The evidence shows that Complainant, for personal reasons, became behind in his work, that current work is being performed satisfactorily, but that the backlog has not been taken care of. It is apparent that HL&P had attempted to work with Complainant to reduce the backlog, and that it did not intend to fire Complainant or otherwise punish him for his conduct. It would appear that

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Complainant's claim of discriminatory employment action is premature, and that he voluntarily removed himself from the workplace.⁶ Thus, he has not proved this element of his prima facie case.

Temporal Proximity

Complainant admitted he had no contact with the Human Resources Division or the NRC until after he had decided to take early retirement. Thus, no inference can be drawn from any temporal relation.

Complainant has therefore not proved the fourth element of his prima facie case.

Conclusion

Complainant has not succeeded in proving that he was in any way retaliated against or treated any differently than any other HL&P employee. Complainant, while credible, has not proved that as a matter of law he should prevail. HL&P's actions, while they may have had an adverse effect on Complainant, do not amount to retaliatory employment action as a matter of law. In sum, Complainant has not met his burden of proof or persuasion in proving a retaliatory employment action.

ORDER

As Complainant has failed to prove a retaliatory employment action, it is hereby recommended that the complaint of Chaman L. Grover against Houston Lighting & Power be DISMISSED with each party to pay its own costs, expenses, and attorney's fee.

Entered this 28th day of July, 1993, at Metairie, Louisiana.

JAMES W. KERR, JR.
Administrative Law Judge

JWK/tb

[ENDNOTES]

¹ Complainant did not address this issue in his 32-page brief. He did address this issue in his February 23, 1993, "Claimant's Response to Respondent's Motion to Dismiss the Complaint," and his arguments are revived and reviewed herein.

² Past non-selection could be considered relevant evidence, however, to show past behavior of both HL&P and Complainant.

³ The limitations period begins to run the day following the event in question.

⁴It is noted that Section 2902 of the Comprehensive National Energy Policy Act, signed into law October 24, 1992, lengthened the time for filing from 30 to 180 days after the violation occurred. 42 U.S.C. §5851(b)(1) but only for claims filed after the date of the enactment of the Comprehensive National Policy Act. In light of the fact that Complainant's claim was filed April 24, 1992, he is not entitled to the 180-day provision.

⁵ Wanda Redd, HL&P's Administrative Division Manager, testified that pursuant to regulation and internal policy, proper notices are posted throughout the workplace which detail how an employee may file a complaint of discrimination with the Department of Labor. Complainant did not introduce any evidence in rebuttal to the claim of proper notice, nor that he was affirmatively misled by HL&P. Additionally, there is evidence that Complainant sought advice of counsel and was told to file a claim 30 days from April 9, 1992. However, the letter from counsel is dated May 1, 1992, one week after Complainant had filed his complaint `with the Department of Labor. In any event, misplaced reliance advice of counsel would not serve to invoke the doctrine of equitable tolling.

⁶ As noted previously, Complainant's complaints about prior allegations of discriminatory conduct (e.g. failure to promote, etc., are time-barred).