DATE: August 18, 1995
CASE NO: 94-ERA-15
IN THE MATTER OF
ARTHUR J. ROBERTS, JR.,
COMPLAINANT,
v.
TENNESSEE VALLEY AUTHORITY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This proceeding arises under the employee protection
provision of the Energy Reorganization Act, 42 U.S.C. § 5851
(1988 & Supp. IV 1992) (ERA). Complainant Arthur Roberts alleges
that he was discharged by the Tennessee Valley Authority (TVA) in
retaliation for safety related complaints made internally to
management. On November 23, 1994, the Administrative Law Judge
(ALJ) issued a Recommended Decision and Order (R.D. and O.)
dismissing the complaint. The ALJ thoroughly summarized the
testimony of the witnesses in the R. D. and O. at 1-7, and after
reviewing the entire record, I find the ALJ's findings are
supported by ample evidence and I adopt them. Furthermore, I
agree with the ALJ's recommended decision to dismiss the case as
untimely filed, with the following additional analysis. BACKGROUND
Prior to working for TVA, Roberts had approximately twenty
five years of experience in the nuclear industry. T. 13.
Roberts' experience began in the Navy where he trained for almost
ten years. Roberts then completed his education and worked as a
consultant for three and a half years. Before joining TVA in
[PAGE 2]
1991, Roberts worked for nine years for the Carolina and Florida
Power and Light companies. Roberts worked at TVA for
approximately two years before he was discharged pursuant to a
Reduction in Force (RIF).
Roberts initial position at TVA was as the manager of
Materials and Procurement. Roberts complained to management that
the Site Standard Procedures (SSPs) used by the Material
Improvement Program were technically inadequate, incomplete and
incompetent. R. D. and O. at 2. As a result of Roberts'
complaining, a position was created for the sole purpose of
completely rewriting the SSPs and creating an accompanying
training program. Roberts was hired into this new position in
March, 1992. Roberts testified that TVA resisted his efforts to
rewrite the SSPs.
After approximately six months, on or about September 24,
1992, TVA decided that the process of completely rewriting the
SSPs was too costly and therefore chose to surplus Roberts'
position. At this time Roberts was transferred to the employee
transition program. On January 14, 1993, Roberts was told that
he was being discharged as a result of a RIF, effective March 29,
1993, unless he found another position with TVA before that date.
R. D. and O. at 2.
While in the employee transition program, Roberts applied
for thirty nine positions throughout TVA. Roberts was only
interviewed for four or five of the positions although several
were below his grade level. Because Roberts did not find a new
position at TVA, March 29, 1993, was his last day of employment
with TVA. Roberts believed that he was rejected for all thirty
nine positions "because his [internal] complaints slowed some of
the [Materials and Improvement Program].". R. D. and O. at 2.
On October 23, 1993, Roberts received a recent copy of TVA's
SSPs. Based upon his review of those SSPs, Roberts claims that
he found several changes which indicated that the SSPs had been
rewritten after his departure from TVA. Based upon those
changes, Roberts claims that his position was not actually
eliminated by TVA, which led to these allegations of
discrimination. TVA admits that Larry Walker made changes to the
SSPs, but argued they were only "tweaking" the procedures, rather
than rewriting them.[1]
Roberts filed this complaint with the Department of Labor
(DOL) Wage and Hour Division pursuant to the ERA on or about
November 11, 1993. Roberts concedes that the complaint was filed out of time, but argues that the filing period should be tolled
pursuant to the doctrine of equitable tolling.
DISCUSSION
An employee who believes that he has been discharged or
otherwise discriminated against in violation of 42 U.S.C.
[PAGE 3]
§ 5851(a) must file a complaint with the Secretary of Labor
within 180 days after such discriminatory act. 42 U.S.C.
§ 5851(b)(1988 and Supp. IV 1992). Roberts filed his
complaint with the Secretary of Labor on November 12, 1993. The
time period for administrative filings begins running on the date
that the employee is given definite notice of the
challenged employment decision. Delaware State College v.
Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)
(emphasis added). In this case Respondent gave Roberts notice of
termination on January 14, 1993, to become effective March 29,
1993, unless he found another position before that date.[2]
The ALJ thoroughly analyzed the theory of equitable tolling
as set out in the decision of Hill and Ottney v. TVA, Case
No. 87-ERA-23, 24, Sec. Dec., Apr. 21, 1994. In Hill and
Ottney I discussed the doctrine of equitable tolling as set
out in School Dist. of Allentown v. Marshall, 657 F.2d 16
(3rd Cir. 1981), and Dayco Corp. v. Goodyear Tire and Rubber
Co., 523 F.2d 389 (6th Cir. 1975). However, as correctly
noted by the attorney for Complainant, the ALJ did not analyze
this case under the 1991 Sixth Circuit case of Rose v.
Dole, 945 F.2d 1331 (6th Cir. 1991). The Complainant argues
that under the Rose v. Dole analysis, Complainant would
prevail on the issue of equitable tolling. I disagree.
Rose v. Dole sets out five factors to be considered
in determining whether equitable tolling is appropriate in any
given case. Those factors are:
(1) whether the plaintiff lacked actual notice of the
filing requirements;
(2) whether the plaintiff lacked constructive notice, i.e.,
his attorney should have known;
(3) the diligence with which the plaintiff pursued his
rights;
(4) whether there would be prejudice to the defendant if
the statute were tolled; and
(5) the reasonableness of the plaintiff remaining ignorant
of his rights.
Rose v. Dole, id. at 1335, citing Wright v. State of
Tenn., 628 F.2d 949 (6th Cir. 1980)(en banc), and other
cases.
Roberts argues that he lacked actual and constructive notice
of the filing requirements under the ERA. Roberts claims that
TVA did not post the filing requirements, or if posted they were
obscured by personal notices such as puppy dog sales. T. 35
et seq. Roberts further claims that he lacked
constructive notice of the filing requirements because he did not
obtain the services of an attorney until several months after
filing this complaint under the ERA.
[PAGE 4]
First, Roberts cannot claim that he lacked constructive
notice because his attorney should have known of the filing
deadline, when he didn't even hire an attorney until after the
deadline had passed. Secondly, Roberts has worked in the nuclear
industry for approximately twenty five years and therefore knew,
or should have known, about the filing requirements under the
ERA. Furthermore, as evidence of Roberts actual and/or
constructive knowledge of the ERA filing requirements, Roberts
knew to contact DOL after receiving the revised SSPs. Therefore,
I find his claim of lack of notice, actual or constructive,
unconvincing.
Roberts also argued the limitations period should be
equitably tolled because he did not know that he had a claim of
wrongful discharge until he saw the rewritten SSPs, and that he
did not receive those until after the filing deadline had passed.
However, Complainant testified that some evidence of TVA's
discrimination against him was in his inability to find another
position at TVA while in the employee transition program. This
argument is contrary to Roberts' claim that he did not learn of
the discrimination against him until after the filing deadline
had passed. Roberts knew that he was applying for positions
which were well below his capabilities while he was in the
transition program. The fact that he was being rejected for
these positions, if discriminatory, should have triggered Roberts
to file a complaint with DOL well within the 180 day filing
period.
I further find, under the fifth factor set forth in the
Rose v. Dole analysis, the reasonableness of complainant
remaining ignorant of his rights, that considering Roberts'
extensive experience in the nuclear industry, it was unreasonable
for him to be ignorant of his rights under the ERA. Therefore, I
agree with the ALJ that the limitation period should not be
tolled.
CONCLUSION
Accordingly, I adopt the ALJ's recommendation that the
complaint be DISMISSED because it is time barred.[3]
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Walker had been assigned to edit or "tweak" the procedures
even while Roberts was assigned to completely rewrite them. The
testimony was convincing that the positions were related, but
involved differing degrees of editing compared to rewriting.
R. D. and O. at 6.
[2] Roberts concedes that the 180 day time limitation expired
regardless of whether the January 14, or March 29 date is used.
Therefore, I will not address the issue of when the 180 day time
limit commenced.
[3] In view of my dismissal of this complaint as untimely, it is
not necessary for me to reach the merits of the other issues
discussed in the ALJ's R. D. and O., or the briefs filed by the
parties.
