.........................
In The Matter of:
DATE ISSUED: February 10, 1994
Charles A. Webb
CASE NUMBER: 93-ERA-42
Complainant
v.
Carolina Power & Light
Company
Respondent
........................
Michael D. Kohn, Esq.
for Complainant
Rosemary G. Kenyon, Esq.
Richard K. Walker, Esq.
for Respondent
BEFORE: NICODEMO DE GREGORIO
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
On April 5, 1993, Charles A. Webb (Complainant) filed a
complaint of job discrimination against Carolina Power & Light
Company (CP&L) under the employee protection provision of the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.
§5851. In the course of an investigation conducted by the
Wage and Hour Division of the U.S. Department of Labor, the scope
of the complaint was enlarged to include a claim against Quantum
Resources, Inc. (Quantum). CP&L and Quantum both requested a
hearing. Webb has since settled his claim against Quantum.
Thus, the current proceeding is solely against CP&L.
Following a period of discovery, CP&L filed a motion for
summary decision on November 12, 1993. The parties have been
allowed the opportunity to file responses and replies. The last
[PAGE 2]
pleading was filed on January 11, 1994.
FACTUAL BACKGROUND
I
Carolina Power & Light Company operates the Brunswick Steam
Electric Plant (Brunswick Plant), a two-unit nuclear power plant
located in Southport, North Carolina. During all material times,
CP&L had a contractual arrangement with diverse contract firms to
provide CP&L temporary personnel to augment CP&L's regular work
force. Quantum was one of the firms that supplied temporary
workers to CP&L.
CP&L utilized two separate offices to recruit contract
workers. CP&L's Nuclear Engineering Department (NED), which is
based in Raleigh, North Carolina, retained workers for all the
facilities of CP&L. The Brunswick Plant also had a contract
office of its own, with responsibility to recruit contract
workers for the operation and maintenance of the Plant in
Southport.
Although the two contract offices were geographically and
organizationally separate, they followed similar procedures in
recruiting contract workers. When CP&L managers needed temporary
workers, they notified one of the two contract offices. The
office placed a job order with one or more contract firms, also
called "shell vendors" or "vendor companies," setting forth the
scope of the work to be done, the technical qualifications an
applicant needed, and other relevant information. After
obtaining permission from interested workers, the vendor
companies submitted resumes to the recruiting office. The office
then sent the resumes to the interested managers who made the
hiring decisions.
II
Charles A. Webb has worked as a contract engineer in the
nuclear industry since 1979. This employment history is
remarkable because Webb has little academic education in
engineering. In fact, Webb's formal education in engineering
after graduating from high school consisted of one year's worth
of civil engineering from the International Correspondence
School. Webb Dep. at 6. This notwithstanding, Webb was
repeatedly hired by CP&L for a variety of engineering work from
1985 to 1991. His last job for CP&L was as a contract
civil/structural engineer at the Brunswick Plant, where he worked
under the supervision of Richard Tripp and John McIntyre. On
[PAGE 3]
November 15, 1991, Webb completed his work and was laid off along
with other workers. Webb makes no complaint about this
termination. Webb Dep. at 93.
III
In April of 1992, the Brunswick Plant was shut down on
account of some safety problems. The situation was reported in
the local newspapers and on television. As a result of this
media coverage, Webb got the impression that CP&L was misleading
the Nuclear Regulatory Commission (NRC) with regard to the time
when the problems became known to CP&L. On April 25, 1992, Webb
contacted the NRC by telephone in order to express his concerns
about the safety of the Brunswick Plant. Subsequently, Webb met
in person with NRC personnel and made eleven safety-related
allegations. Webb asked NRC to keep his contacts confidential,
and did not tell anyone about the contacts except his wife. On
May 5 and 7, 1992, the NRC wrote to CP&L requesting an
investigation and a report on four safety allegations. CP&L
responded on June 29, 1992.
IV
Webb last worked in November of 1991, and by the time he
contacted NRC at the end of April 1992 he was still unemployed.
This result was not due in any way to a lack of interest in
finding a job. On the contrary, Webb's deposition and a journal
he started keeping in May of 1992 demonstrate extraordinary
diligence in this regard. For instance, in January of 1992 Webb
sent out 1400 resumes through Contract Engineering Weekly, a
service that lists jobs. Webb Dep. at 20-21. Webb also sent out
about 150 resumes on his own initiative. Id. at 33. In
short, Webb's job search has been relentless. Unfortunately,
these efforts had produced no job offer by September 10, 1993,
the date of Webb's deposition.
Webb had heard that reporting safety problems to NRC was
"career-limiting." After his contacts with NRC, Webb became
apprehensive about his employment opportunities in the nuclear
industry. It occurred to him that he should make a record of
events and activities related to his search for jobs. Webb Dep.
at 22-24; Webb Aff. ¶ 18. Accordingly, on May 23, 1992,
Webb began keeping a journal in order to record the events of the
preceding 30 days, as well as future events. Webb Journal, CX 28
at 1.
Webb had hopes of returning to CP&L, based on his knowledge
[PAGE 4]
of the work done at CP&L. In May of 1992, Webb was advised by
Quantum that it had received job orders from CP&L for
civil/structural engineers. Webb authorized Quantum to submit
his resume for the jobs. Webb Aff. ¶ 9. On or about June
15, 1992, Webb called J.E. Harrell, a hiring supervisor at CP&L
and Webb's second level supervisor during his last employment at
CP&L, to find out why he had not been called back. Harrell told
Webb that there was no reason why Webb could not return, and
suggested that Webb have Quantum fax Webb's resume to him. CX 28
at 13; Webb Aff. ¶ 8. During July of 1992 Webb was advised
by Sharon George, a manager at Quantum, that CP&L was hiring only
degreed engineers for its design engineering group. See
CX 28 at 25, 28; Webb Aff. ¶ 14. Webb was surprised because
he had repeatedly worked for CP&L from 1985 to 1991 without a
degree in engineering, and also because Harrell had told him
there was no reason why he could not go back.
Although dismayed, Webb did not give up his quest for
employment at CP&L. In July of 1992 Webb sought the aid of Tech
Aid, another supplier of contract personnel, to obtain a position
with Bechtel, an engineering firm that CP&L had selected to do
some work at the Brunswick Plant. CX 28 at 27. Webb also claims
that in July 1992 he authorized Sharon George at Quantum to
submit his resume for field engineering jobs at CP&L, which did
not require engineering degrees, and that he "eventually"
received word from George that his resume had been submitted for
field engineering positions. Webb Aff. ¶ 15. Webb's
journal entries for July 20 and 22, 1992, do not support this
claim. CX 28 at 28, 31. Months later, Webb had his resume
submitted by Pacific Nuclear, also a provider of contract
personnel, for a position at CP&L's Robinson Plant. CX 28 at 48.
All along, Webb was also handing out his resume to friends
working at the Brunswick Plant and elsewhere, in the hope that
they would help him secure a position. Unfortunately, all the
efforts proved unavailing.
SUMMARY DECISION
I
CP&L has moved for summary decision on Webb's complaint on
two grounds. CP&L contends that Webb's complaint is untimely
because it was filed outside the filing period allowed by the
Energy Reorganization Act of 1974 (ERA). Moreover, CP&L contends
that the undisputed facts demonstrate that no one at CP&L knew
about Webb's allegations to the NRC, and thus Webb cannot make a
[PAGE 5]
primafacie case of discrimination. The motion is
supported with numerous affidavits and depositions, which will be
identified in the course of this discussion, as appropriate. In
opposition to the motion for summary decision, Webb contends
that CP&L's timeliness argument must fail because at least one
act of discrimination occurred within the limitations period,
relying on the doctrine of continuing violation. As to the
second ground of the motion, Webb answers that there is enough
circumstantial evidence, e.g, "fingerprinting," to establish that
CP&L had knowledge that Webb was the source of the safety
allegations that provoked the NRC investigation of the Brunswick
Plant. Webb supports his response with his own affidavit, a
written statement Sharon George gave to the Wage and Hour
Division investigator, the report of this investigation, and
certain other materials that will be mentioned as needed.
II
A motion for summary decision in an ERA case is governed by
our Rules of Practice and Procedure, 29 C.F.R. §§18.40-
18.41, which mirror Rule 56 of the Federal Rules of Civil
Procedure. Trieber v. Tennessee Valley Auth., Case No.
87-ERA-25, Dec. and Order of Secretary, Sept 9, 1993, slip op. at 7, 8. When a
properly supported motion is made under section 18.40, the party
opposing the motion may not rest on mere allegations or denials,
but must set forth specific facts showing that there is a genuine
issue of fact for the hearing. A summary decision is proper if a
party shows that there is no genuine issue as to any material
fact, and the party is entitled to a decision in its favor. A
summary decision may be entered against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial. "In such a situation, there can be
'no genuine issue as to any material fact; since a complete
failure of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts immaterial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct.
2548, 2552 (1986).
The substantive law determines which facts are material so
that only disputes about facts that might affect the outcome of
the case preclude the entry of a summary decision. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 2510 (1986). Finally, not every dispute over a material
fact is "genuine." Summary decision is precluded only if the
party having the burden of proof shows sufficient evidence which,
if
[PAGE 6]
established at a trial, would support a finding in its favor.
SeeAnderson, supra, at 250-51, 106 S.Ct. at
2511; Smith v. Tennessee Valley Auth., 90-ERA-12, Sec.
Final Dec. and Order of Dismissal, April 30, 1992, slip op. at 4.
For "the purpose of summary judgment is to head off trials the
outcome of which is foreordained." American Nurses' Ass'n v.
Illinois, 783 F.2d 716, 730 (7th Cir. 1986).
The substantive law that governs the making of a
primafacie case of discrimination and the burdens
of production and proof is well settled. To establish a
primafacie case of discrimination under the ERA,
the complainant must show that he engaged in protected activity
of which the respondent was aware, that the respondent took
adverse action against him, and he must produce evidence
sufficient to raise an inference that the protected activity was
the likely motive for the adverse action. Dartey v. Zack Co.
of Chicago, Case No. 82-ERA-2, Sec. Order, April 25, 1983,
slip op. at 8; Bartlik v. Tennessee Valley Auth., 88-ERA-
15, Sec. Final Dec. and Order, April 7, 1993, slip op. at 3. If
a primafacie case is established, the respondent
has the burden of producing evidence that the adverse action was
motivated by legitimate reasons. Id. The complainant
always bears the burden of proving by a preponderance of the
evidence that retaliation is a motivating factor in respondent's
action. Id.; SeeSt. Mary's Honor Center v.
Hicks, _ U.S. _, 113 S.Ct. 2742 (1993).
ANALYSISGENUINE ISSUE OF MATERIAL FACT
I
On July 27, 1993, a Prehearing Order was issued requiring
Webb to file a full statement of the acts and omissions, with
pertinent dates, which are believed to constitute the violation
alleged. On August 2, 1993, Webb filed a Notice of the Acts and
Omissions Giving Rise to Complaint. This pleading simply alleges
that, in violation of the Act and regulations, CP&L and Quantum
(1) failed to employ Webb for any outage which took place at any
CP&L facility after November 1991, and (2) hindered his abilities
to find a position elsewhere in the nuclear industry through
blacklisting Webb within the industry. After a period of
discovery and two responses to CP&L's motion for summary
decision, the scope of the complaint still remains to be defined.
[PAGE 7]
It may help to understand this case, as well as Webb's
propensity to use arguments in lieu of facts, if we consider the
reasoning by which Webb reached the conclusion that he is a
victim of discrimination. As mentioned above, Webb had heard
that talking to the NRC is harmful to a career in the nuclear
industry. Hence, in May 1992, while he was still making
allegations to NRC, and prior to any indication that he would not
go back to work for CP&L, Webb became apprehensive about
discrimination. Webb Aff. at 8. This was the genesis of his
journal. Also, after his November 1991 layoff, Webb made a
persistent and wide-ranging search for jobs, which proved
unproductive. This failure was a new experience for Webb,
because prior to November 1991 he had found no particular
difficulty securing work. By the summer of 1992, Webb came to
believe that the explanation for this new experience must be
found in discrimination. See Webb Dep. at 86-87.
At any rate, in view of the elements for a primafacie case of discrimination under the ERA, it is clear
that Webb's random allegations of blacklisting on the part of
CP&L cannot raise a genuine issue of material fact to preclude
the entry of summary decision in favor of CP&L. Indeed, even if
many of the allegations were mistaken for specific facts, they
would be mostly irrelevant as a matter of law.
II
Although Webb repeatedly complains about "blacklisting," I
do not find a specific allegation of a blacklist, in the sense
of a "list of persons marked out for special avoidance,
antagonism, or enmity on the part of those who prepare the list,
or those among whom it is intended to circulate." Eqenrieder
v. Metropolitan Edison Co., Case No. 85-ERA-23, Sec. Order of
Remand, April 20, 1987, slip op. at 6, n. 6. Nowhere does Webb
allege that there is some document or other form of communication
indicating that Webb should be denied employment, which CP&L has
distributed to its hiring personnel and to other employers in the
nuclear industry. Yet, Webb's Notice of Acts and Omissions does
charge that CP&L, in some undisclosed manner, has (1) denied
employment to Webb, and (2) conspired with other employers to
prevent Webb from finding employment elsewhere.
To the extent that the complaint herein charges some form of
conspiracy between CP&L and other employers to exclude Webb from
employment, that portion of the complaint must be dismissed.
Webb has not identified any personnel of CP&L with knowledge of
his NRC contacts, who has influenced the employment decision of
[PAGE 8]
any other employer to Webb's detriment. SeeTrieber v.
Tennessee Valley Auth., Case No. 87-ERA-25, Sec. Dec. and
Order, Sept. 9, 1993, slip op. at 10-11.
With respect to C&PL's failure to reemploy Webb, there is no
dispute that Quantum submitted Webb's resume to CP&L on at least
three occasions, May 6, May 13, and June 15, 1992. On May 6,
1992, Webb's resume was submitted for one of two structural
engineering positions at the Brunswick Plant. Geoff Wertz, the
hiring supervisor, stated by affidavit that Webb was eliminated
from consideration for lack of an engineering degree, and another
applicant who had a four-year degree was hired. Wertz Aff.
¶ 2. Wertz further states that he did not know, and had no
reason to suspect, that Webb had been in contact with NRC. Wertz
Aff. ¶ 3.
On May 13, 1992, Quantum submitted Webb's resume for an
unspecified position in NED. This was a "blind submittal," which
was made contrary to CP&L's standard procedures which required
the contracting firm to designate the position for which a resume
was submitted. There is no evidence as to the outcome of this
submission. Cooke Dep. at 17; Duncan Dep. at 41-43; 52-53.
The third submission was made on June 15, 1992 for an
engineering position located at the Brunswick Plant. According
to Webb's journal, on this date Webb telephoned J.E. Harrell to
inquire why Webb had not been called back. CX 28 at 13. Harrell
stated that there was no reason Webb could not go back, and
suggested that Webb have Quantum submit the resume to him.
Id. Webb then called Quantum to request the submittal.
Id. Harrell testified by deposition that upon receipt of
the resume he eliminated Webb from consideration because Harrell
was seeking a degreed engineer, and Webb did not have a degree.
Harrell Dep. at 39-40. Harrell also testified that prior to the
instant proceeding it never occurred to him that Webb might be
the source of the safety allegations made to NRC. Id at 104.
Webb also had Chuck Kestner of Pacific Nuclear, another
organization providing contract workers, submit his resume for
positions at the Robinson Plant, another facility of CP&L. Don
Dyksterhouse, the project engineer who attempted to fill the
positions, stated by affidavit that he was subsequently
instructed by CP&L not to fill the positions, so that no one was
hired. Dyksterhouse Aff. ¶ 3. Kestner informed Webb in
December of 1992 that CP&L would not fill the positions. Kestner
Aff. ¶ 2.
[PAGE 9]
Webb, however, alleges additional acts of discrimination on
the part of CP&L. He strenuously contends in his Reply to CP&L's
Motion for Summary Decision, dated December 7, 1992, that in July
of 1992 he authorized Quantum's manager, Sharon George, to submit
his resume for a lower-paying field engineer position, which did
not require a degree, and that he was advised by George that his
resume was submitted. In his Second Response to the motion, Webb
constructs elaborate arguments on the foundation of Deposition
Exhibit 25, and on the possibility that Quantum's business
records are not complete or accurate.
I believe there can be no genuine issue on this point.
Quantum's business records indicate that Webb's resume was never
submitted after June 15, 1992. CP&L Exh. 11 (Webb's Submittal
History) and CP&L Exh. 12 (Contact Entry), both attached to the
Cooke Affidavit. Michele Cooke and Sharon George, a present and
former employee of Quantum, have both testified that Quantum did
not submit Webb's resume for any CP&L position after June 15,
1992. George Dep. at 100-102; George Aff. ¶ 3; Cooke Aff.
¶ 4. Webb argues that the investigation report of the Wage
and Hour Division investigator is admissible evidence. I agree,
but at least on this point the report does not help his case
because it concludes that after June 15, 1992 Quantum never
submitted Webb's resume to CP&L again. CX 2 at 5, 6.
As for Deposition Exhibit 25, it cannot support the weight
that Webb places on it. This record of Quantum, entitled
Requirement Entry, reflects a job order from CP&L, dated June 8,
1992, for field engineering positions requiring no education;
Webb's submittal on June 15, 1992; and a notation under Status
Report that only Webb had been ruled out. Webb insists that this
document establishes that Webb's resume was submitted for such a
field engineering position. This contention is rebutted by the
evidence which establishes that the position for which Webb's
resume was submitted on June 15, 1992, was the civil/structural
position which Harrell was trying to fill. Cooke testified in
her deposition that the job description in Deposition Exhibit 25
was erroneous, due to a misunderstanding that the position did
not require a degree. It was Webb who called Cooke's attention
to the error, after learning from Action Tech, one of Quantum's
competitors, that the job order required a degree. Cooke Dep. at
20-21, 49. This testimony is corroborated by the Contact Entry
record of Quantum, and by Webb's journal entry on June 15, 1992,
concerning his telephone conversation with Harrell. Finally,
Webb finds discrimination in the fact that he continued to seek a
job at CP&L by getting co-workers to hand-deliver copies of his
resume to managers at the Brunswick Plant, and in the fact that a
[PAGE 10]
former supervisor, Richard Tripp, expressed a negative opinion
concerning his productivity and personality. I believe this
contention is insufficient. In order to make out a primafacie case of discrimination under the ERA, Webb must
identify an adverse action taken by CP&L. SeeShehadeh
v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 729 (D.C.
Cir. 1978); Samodurov v. General Physics Corp., Case No.
89-ERA-20, Sec. Dec. and Order, Nov. 16, 1993, slip op. at 9, 11.
In sum, Webb has shown no evidence that CP&L has taken any
adverse action against him other than the rejection of his
applications submitted through Quantum on May 6 and June 15,
1992. The rejection of his application through Pacific Nuclear
was not a discriminatory act in that the positions were never
filled. SeeSamadurov v. General Physics Corp.,
Case No. 89-ERA-20, Sec. Dec. and Order, Nov. 16, 1993, slip op
at 9, 11. Finally, Webb's allegations of continuous job searches
through intermediaries and any possible actions or omissions by
Quantum and other contract organizations, even if fully proved,
provide no basis for relief against CP&L. Id.
III
One of the grounds on which CP&L seeks summary decision is
that there is no evidence that CP&L knew that Webb had contacted
the NRC. Knowledge of complainant's protected activity is of
course an essential element of a primafacie case
of discrimination. Thus, if CP&L's contention on this issue is
valid, summary decision is proper.
Webb argues vigorously that an employer's knowledge of
protected activity may be proven by circumstantial evidence.
This is quite true. Indeed, as the Secretary has stated
recently, the allocation and order of burdens of proof and
production set forth in Dartey v. Zack Co. are applicable
only where circumstantial evidence of discrimination is
presented. Bartlik v. Tennessee Valley Auth., Case No.
88-ERA-15, Sec. Final Dec. and Order, April 7, 1993, slip op. at
4. But, I do not agree that the speculations that Webb advances
in this case are circumstantial evidence of knowledge.
Since Webb argues generally that the scope and nature of the
allegations raised by Webb to the NRC allowed "CP&L" to
fingerprint Webb as the source of the allegations, I start with
the observation that the contention is insufficient as a matter
of law. In order to show that he could establish at the hearing
the knowledge element of his primafacie case, Webb
must have
[PAGE 11]
evidence that the employees of CP&L who made, or
participated in, the adverse actions complained of had the
requisite knowledge. Bartlik v. Tennessee Valley Auth.,
supra, slip op. at 4 n. 1.; Crobsy v. Hughes Aircraft
Co., Case No. 85-TSC-2, Sec. Dec. and Order, Aug. 17, 1993,
slip op. at 23-24. Specifically, Webb must show that Wertz and
Harrell were aware of his NRC contacts.
Webb contends that, even though he had told no one of his
NRC contacts other than his wife, and even though the NRC assured
him of confidentiality, CP&L somehow found out about his
contacts. Webb originally suspected that someone at NRC had
revealed his identity to CP&L. Thus, on September 8, 1992, Webb
called NRC personnel to express his concern in this regard. Webb
Dep. at 138-40. Webb suspected that John McIntyre, an employee of
NRC from 1991 to October 1992, had learned about his contacts
with NRC and disclosed his identity to CP&L. In his deposition,
Webb admitted he had no facts to support this allegation, (Webb
Dep. at 139-42), and McIntyre had disclaimed such knowledge in
his affidavit. McIntyre Aff. ¶ 3. Finally, on March 25,
1993, in the course of an interview, an investigator from NRC's
Office of the Inspector General explained to Webb the concept of
"fingerprinting," how a utility could determine the identity of
an NRC alleger based solely on the content of the allegations.
Webb Aff. ¶ 22. Webb's contention now is that his numerous
allegations of safety defects that had been discovered at the
Brunswick Plant as far back as 1988 helped pinpoint him as the
author of the allegations.
The concept of fingerprinting, as formulated by the NRC's
investigator and Webb at the interview, is as follows. If a
series of specific allegations are brought to a licensee's
attention that only one person knows, and if that person reports
them to the NRC, and if the NRC then brings up those specific
concerns to the management, that's known as fingerprinting.
See Taylor interview at 43-44, attached to Complainant's
Reply of December 7, 1993. Simply stated, if certain information
is within the exclusive possession of one person, and
subsequently a second person shows knowledge of it, a reasonable
inference is that the first person has disclosed the information.
If this formula is taken literally, it does not help Webb's case.
At Webb's deposition, counsel for CP&L examined Webb with respect
to each issue he had raised with NRC. Webb admitted that he was
not "particularly associated" with any of the issues Webb Dep. at
208. Indeed, it is ironic that the newspaper article that
incited Webb to call first the newspaper editor, and then the
NRC, related to missing bolts on the walls of the Diesel
Generator Building, about which Webb had heard "snatches of
[PAGE 12]
conversations" when he first arrived at Brunswick in about 1988.
CX 28 at 1-3.
Moreover, assuming that someone could have identified Webb
as the author of the NRC allegations, it does not follow that
someone did. Webb does not identify who did the work of
identification. We are not told whether Harrell and Wertz
identified Webb independently or together, or whether a third
party did the work and notified Harrell and Wertz that Webb was
the NRC contact. I note finally, that the investigator from the
Wage and Hour Division did not find that Webb was fingerprinted.
The investigator concluded that there were "numerous ways" that
CP&L "could have" known that Webb complained to the NRC,
including knowledge from John McIntyre and fingerprinting. CX 2
at 10.
In sum, Webb had repeatedly stated that his allegation of
fingerprinting is based on assumptions and speculations.
See Webb Dep. at 148-49, 162-63, 173-74. Considering that
Wertz and Harrell have specifically denied under oath kowledge of
Webb's NRC contacts, I find that there is no genuine issue of
fact on this essential element of a primafacie
case. It follows that CP&L is entitled, as a mater of law, to a
summary decision in its favor.
Timeliness of Complaint
I
CP&L also seeks summary decision on the ground that the
complaint filed on April 5, 1993 is untimely. Webb contends that
this limitations argument falls short in two respects. First,
Webb asserts that blacklisting is by its nature a continuing
violation, so that as long as one specific act of discrimination
occurs within the limitations period the entire complaint is
timely. Second, Webb contends in effect that the statute of
limitations never commenced to run, because at no time before the
filing of the complaint was he given unequivocal notice that CP&L
was rejecting him for field engineering positions. Complainant's
Reply to CP&L's Motion for Summary Decision at 8-9. Webb also
contends that, to defeat the motion, he need only demonstrate
that a factual dispute exists as to whether or not his resume was
submitted for non-degreed field engineering positions, and that
it is improper at the summary decision stage to weigh the
strengths or weaknesses of the competing factual assertions.
Complainant's Response to Respondent's Reply Brief at 1-2.
[PAGE 13]
II
As a preliminary matter, I reject CP&L's contention that the
employee protection provision of the ERA requires a complaint to
be filed within 30 days after the occurrence of the alleged
violation. The October 24, 1992 amendments to section 210
(presently, section 211) of the ERA, which extended the filing
period to 180 days, apply to Webb's complaint, inasmuch as the
complaint was filed after the date of the enactment of the
amendments.
I also reject Webb's contention that in ruling on a motion
for summary decision, it is improper to weigh the strengths and
weaknesses of the opposing factual contentions, at least if this
means that any evidence supporting the nonmoving party's case,
even though not significantly probative, presents a genuine issue
for trial. SeeAnderson v. Liberty Lobby,Inc., 477
U.S. 242, 249-52, 106 S.Ct. 2505, 2510-12 (1986). A properly
supported motion for summary decision raises the threshold issue
whether there is a need for a trial, and a trial is not needed
unless the party opposing the motion demonstrates that he has
sufficient evidence which, if credited, would support a finding
in his favor. Id. This is true even when a motion for
summary decision is based on the untimeliness of the complaint,
an affirmative defense on which the moving party has the burden
of proof.
III
Webb's argument based on the lack of notice as the outcome
of his alleged application for a field engineering position may
be disposed with the observation that it rests on a false factual
predicate. As explained above, Webb's resume was never submitted
for such a position, and the fact that he never learned the fate
of such an alleged submittal only lends more support to my
finding on this issue.
With respect to Webb's continuing violation argument, I
agree with Webb that the timeliness of a claim of such a
violation is measured from the last discriminatory act. The
difficulty lies in distinguishing a continuing violation from a
series of discreet acts of violation.
Case law on the subject of continuing violations has been
described as inconsistent and confusing. Berry v. Board
ofSup'rs of L.S.U., 715 F.2d 971, 979 n. 11 (5th Cir.
1983). Where a complaint attacks an employment policy or
practice that continues in effect within the prescribed filing
period, the
[PAGE 14]
doctrine of continuing violation presents no particular
difficulty. SeeBruno v. Western Elec. Co., 829
F.2d 957, 960-61 (10th Cir. 1987); Shehadeh v. Chesapeake &
Potomac Tel. Co., 595 F.2d 711, 724 (D.C. Cir. 1978). The
difficulty arises where a claim of continuing violation is based
on a series of allegedly discriminatory acts. SeeBerry v. Board of Sup'rs of L.S.U., supra,
715 F.2d at 981.
I am of the view that the doctrine of continuing violation
always presupposes a policy or practice that continues in effect
over time, whose existence in some cases is demonstrated
independently of its applications, while in other cases is
inferred from a series of applications. Several unconnected acts
of discrimination against an individual, even if they are all
motivated by his protected activity, do not constitute a
continuing violation because completed acts are not of a
continuing nature. Helmstetter v. Pacific Gas & Elec.
Co., Case No. 86-SWD-2, Sec. Dec. and Order of Remand, June
15, 1989, slip op. at 8; English v. General Elec. Co.,
Case No. 85-ERA-2, Sec. Final Dec. and Order, Feb. 13, 1992, slip
op. at 5. Even where blacklisting is alleged, analysis must
start by identifying precisely the unlawful employment practice
complained of, because repeated denials of employment do not
constitute a continuing violation unless the denials are based on
some allegedly discriminatory practice. Egenrieder v.
Metropolitan Edison Co., Case No. 85-ERA-23, Sec. Order of
Remand, April 20, 1987, slip op. at 6.
In the instant case, while Webb alleges blacklisting, no
evidence is shown of the existence of any "blacklist" or
discriminatory practice. When allegations of fruitless job
searches through intermediaries and of "bad-mouthing" are put
aside, as they do not constitute adverse actions by CP&L, only
the rejection of Webb's submittals for civil/structural
engineering positions by Wertz and Harrell is identified. Webb
knew by July of 1992 that he was not going to get the position.
Webb Aff. ¶¶ 14-15. Webb knew enough to file a
complaint at least by September 21, 1992, when he told Michele
Cooke of Quantum that he was being blackballed and planned to sue
CP&L. Because Webb's complaint was filed on April 5, 1993, both
dates are outside the 180-day filing period.
Accordingly, there is no genuine issue as to the
untimeliness of the complaint. There is no sufficient evidence
of blacklisting to make out a case of continuing violation.
Moreover, even if the two rejections constituted blacklisting,
and thus a continuing violation, the complaint would still be
time-barred because the last rejection occurred more than 180
days prior to the filing of his complaint.
RECOMMENDED ORDER
The complaint of discrimination filed by Charles A. Webb
pursuant to section 211 of the Energy Reorganization Act of 1974,
as amended, is dismissed.
_____________________________
NICODEMO DE GREGORIO
Administrative Law Judge
NDG/sjn
