cautioned that similar further disregard of the court's discovery orders might lead to sanctions, but no sanctions were imposed. Rather, the undersigned, in an attempt to assist the complainants, modified the complainants' Second Request for Production of Documents, Second Interrogatories and First Request for Admissions, and ordered the respondents to answer the discovery as modified.

    By Order of December 5, 1995, the undersigned denied complainants' motion to compel responses to their third requests for production of documents, third interrogatories, and second request for admissions filed on November 16, 1995. and granted DOE's motion for a protective order against this discovery. The complainants' new discovery still did not deal with the timeliness of the complaints in violation of the Order of August 14, 1995, and was apparently intended to assist the complainants to prepare their supplemental submissions stating causes of action under CAA, SWDA, SDWA and CERCLA. The complainants were reminded that discovery on the merits of their complaints under CAA, SWDA, SDWA and CERCLA was not appropriate until the timeliness issue was resolved, and that such discovery should not even be necessary, since discovery is intended to flesh out causes of action, not to create them. In short, complainants should have had personal knowledge of their protected activity under each and every statutory authority invoked prior to filing their complaints with Wage-Hour.

    On December 18, 1995, the complainants filed a submission entitled "First Environmental Protected Activity Summary." The submission stated, with respect to each complainant, that "protected activity under environmental whistleblower statutes includes but is not limited to the following employees with the characteristics described, whose work assignments pose dangers of environmental releases, spills, accidents, and radiation exposures ... " and that "Complainants raised protected environmental concerns about numerous other persons whom respondents have allowed to work in close proximity with bomb-grade uranium, radiation, and toxic materials, repeatedly referring to the possibility of spills or criticality accidents (like the one that nearly happened in 1994 and the one that happened in 1958 and other occasions in the past." (pp. 1, 2, 9, 13). The specific allegations are summarized below.

(1) A drunk employee, whose supervisors knew about and tolerated his "condition" (presumably alcoholism) was sent home from a nuclear criticality safety meeting. Ms. Johnson's recommendation for an interview of the supervisors was

not followed.

(2) In 1990, Ms. Johnson recommended a health physicist for a suspension and administrative review hearing about alcohol, drug abuse, and financial irresponsibility. There was a "contretemps" with Ms. Howse-Smith and ORAU over the clearance although apparently some action was taken.

(3) In March 1991, a case involving the security clearance review of a Y-12 health physicist who used cocaine in 1984 was still pending.

(4) Respondent Howse-Smith was "unreceptive" to Ms. Johnson's recommendation for an updated background investigation, national police checks, and an interview of a Y-12 drug dealer living with an ex-convict who was reportedly involved in a police inquiry in which shots were fired.

(5) Respondent Howse-Smith rejected a recommendation to require a hearing and reinstated the clearance of a Y-12 employee with access to bomb-grade uranium who had been found alcohol dependent by a DOE psychologist but planned to continue drinking.

(6) In 1988, Ms. Johnson objected to the failure to document and require an administrative review hearing involving allegations by the spouse of a Y-12 employee of continued cocaine use by her husband and no investigation of her allegations of thefts by three other Y-12 employees.

Johnson stated that she would need to see case analysis and review sheets to complete the report on this and other items.

(1) An employee hired and cleared in the 1970s as an armed security inspector had lied about his background. After an investigation and a referral to a DOE consultant psychologist who described the employee as unreliable and a chronic liar, McQuade recommended suspension and revocation of the clearance to respondent Howse-Smith, who continued the clearance. "The employee is today a Q-cleared security inspector with access to Special Nuclear Materials (bomb-grade uranium) and to secret and restricted data. He is a threat to national security, the environment and the health and safety of East Tennesseans."

(2) An employee with access to bomb-grade uranium and secret and restricted data was reinvestigated in 1989-90, admitted to drinking problems, blackouts, urinating in his front yard, and shooting out street lamps, and was recommended for referral to a psychologist and a hearing on suspension or revocation, but his clearance was continued by respondent Howse-Smith and he continues to work at Y-12. "The employee is a clear and present danger to the environment and national security."

(3) A former Y-12 guard captain, when investigated in 1988-1989 by the FBI for dealing

cocaine, identified 6 other guards to whom he had sold cocaine. They were subsequently investigated by OPM which found derogatory information, but their files disappeared for two years and they still hold active security clearances at Y-12. "The individuals ... represent unacceptable risks to the environment, co-workers, fellow citizens and national security."

(4) During late 1994, a personnel security analyst from Oak Ridge, who had been sent to the Portsmouth, Ohio enrichment plant to conduct security interviews, was informed by an employee in the plant library that plant management was joking about the intentional release of toxic gases into the atmosphere. "Upon information and belief, the gases are still being vented and the employees in quo still hold Q clearances, with the ability to pollute the environment."

(5) A guard captain hired in the 1970s still retains his security clearance and was promoted to the training division although he was initially interviewed relating to dishonest and criminal conduct, and was found to have stolen computer equipment from DOE sites in 1991. At least two recommendations for an administrative hearing on his clearance were not carried through.

(6) After a security inspector was arrested in Knoxville in 1994 for publicly discharging a machine gun, he met with respondent Howse-Smith, but no action was taken other than his transfer to an area at Y-12 where he has access to bomb-grade uranium and other radioactive and toxic substances. He retains his security clearance.

(7) A Y-12 employee with access to bomb-grade uranium has been arrested on numerous occasions for alcohol-related offenses but has had his Q clearance continued by respondent Howse-Smith "ignoring risks of environmental spills and DOE security clearance standards."

(8) After a Y-12 employee's security clearance was revoked, and the employee was reported by respondent Howse-Smith to be a drug-addicted prostitute, her clearance was restored in 1991 for the Pantex Plant near Amarillo, Texas where she assembled nuclear weapons until her death in 1995. The Pantex Plant is described as having "done major damage to an aquifer which underlies eleven states ...", .and "the OPM investigator was so disgusted at DOE's intent to give her a clearance that he quit his job."

(9) After DOE suspended the Q clearance of a Portsmouth uranium enrichment plan employee who admitted using cocaine during a 1988 security interview, an undercover investigation by the FBI, in which McQuade was involved, had to be suspended. "The cocaine dealer and his other purchasers remain Q-cleared, in harm's way, in a uranium enrichment plant, where spills, releases and other dangerous occurrences can happen."

(10) A convicted burglar of a Marine Corps PX who served a year in a Marine Corps Brig was employed by a DOE contractor as a courier of classified documents after being granted a Q-clearance by respondent Howse-Smith without the hearing and clearance denial recommended by McQuade. He continues to work in a vault where classified documents are stored for DOE ORO. "Theft of these documents by the dishonest courier could result in serious environmental catastrophes, including terrorists obtaining

information that could allow sabotage of facilities where 17,000 toxic and radioactive materials are in use and where bomb-grade uranium and a host of toxic materials are stored."

(11) In 1990, a DOE ORO interviewer recommended for clearance an employee who engaged in emotional tirades, demonstrated homicidal impulses, and claimed that he had shot his wife by accident, even though the Tennessee Court of Criminal Appeals had upheld his conviction for attempted murder. McQuade complained about the recommendation to respondent Howse-Smith and a Mr. Banta of DOE ORO, but the clearance was granted and McQuade was criticized for being too detail-oriented and not following the interviewer's recommendation.

(12) In approximately 1987, McQuade secured the firing of an employee associated with the Outlaws Motorcycle Club, "an organized criminal group involved in drug sales and other felonies," when the employee tested positive for cocaine on the day before he was to receive an administrative hearing on the suspension of his security clearance. "Persons with Outlaws M.C. associations remain employed at Y-12 to this day."

(13) In approximately 1987, McQuade was instructed by the chief of security at DOE OR to bring in for an interview the targets of an FBI investigation of drug dealing and other criminal activities at Y-12, although this would have compromised the FBI investigation. "[O]rganized crime still flourishes at the Y-12 Nuclear Weapons Plant, presenting serious risk of environmental pollution, employee exposure and devastation as Y-12 employees buy, sell and use drugs, [and] engage in prostitution and other nefarious activities .... "

(1) In 1990-1991, after Mr. Warden relayed information from a confidential informant to Respondent Howse-Smith about the sexual activities of a Y-12 plant security inspector in a Guard Portal shown on surveillance cameras, nothing was done about the situation and Ms. Smith prohibited him thereafter from pulling security files for review based on information from confidential informants.

(2) In 1989-1991, a member of a DOE "Tiger Team" was interviewed, but his clearance was continued without hearing despite arrest on a morals charge in California in 1982, engagement in high-risk sexual behavior while on official DOE travel, alcohol dependence, and Mr. Warden's raising the question of blackmail.

(3) Around 1992, Mr. Warden recommended that a Y-12 Nuclear Weapons Plant Security Officer, who had previously been identified as "a major drug abuser caught in a local drug bust", be required to undergo a drug screen. Respondent Howse-Smith refused, and one year later the employee was arrested purchasing cocaine and eventually fired.

(4) The security clearance of an employee in a position with exposure to radioactive and hazardous materials was continued despite severe psychiatric problems resulting in a hospitalization in 1994.

(5) Notwithstanding a DOE psychologist's diagnosis of alcohol dependence, the clearance of an employee with access to radioactive and hazardous material was continued.

(6) An employee with continuing access to Y-12 uranium stockpiles who tested positive for cocaine following Mr. Warden's recommendation for drug testing was allowed to go into a rehabilitation program. He continued using drugs and was eventually fired several months later.

(7) Although an employee who pleaded guilty to assault after killing a man in a bar fight and was diagnosed by a DOE psychologist as "adult antisocial personality with defect in judgment," respondent Howse-Smith continued the clearance, DOE headquarters recommended immediate suspension of the clearance in 1991, and the employee was eventually fired from the facility for theft of government property, without having had his access canceled.

(8) An employee's clearance was not suspended until 1995 although he admitted in 1990 that he had violated a promise not to take drugs, information received in 1992 indicated that he had a seizure disorder which, in combination with alcohol abuse, caused a problem with judgment, and he was charged in 1995 with assaulting his daughter.

(9) After an interview with Mr. Warden, a Y-12 security inspector tested positive for cocaine, and quit before further action was considered.

(10) An employee with access to hazardous and radioactive materials was interviewed by Mr. Warden in 1992. Although she had financial problems, had been fired from previous positions, and may have engaged in welfare fraud, respondent Howse-Smith granted the clearance without a hearing. In 1995, an updated credit report showed extensive credit problems but the clearance was continued.

(11) The clearance of an employee with access to hazardous and nuclear materials was continued and the employee, who was involved in local politics, was allowed to enter a rehabilitation program after testing positive for marijuana although other marijuana- smoking employees before and since were fired or suspended.

(12) Although a Y-12 security inspector interviewed by Mr. Warden as an applicant was fired from his last job for fraud, and admitted taking money as a high school student athlete to sign with a college football program as well as personal associations with local drug dealers, respondent Howse-Smith granted clearance.

(13) Although a Y-12 employee was convicted of stealing from a local discount store, the employee's clearance was continued.

(14) The clearance of a Y-12 security inspector was continued following a reinvestigation regarding drug use after which the file disappeared twice and a source who had to be recontacted could not be found.

(15) Respondent Howse-Smith continued the clearance without hearing of an employee with access to hazardous and nuclear materials who was diagnosed by a DOE psychologist as alcohol-dependent.

    On March 8, 1996, the undersigned issued an Order: (1)denying complainants' November 24, 1995, motion for an order requiring information from DOE on security clearance files and to institute security measures to protect against possible alterations to the security clearance files for the persons listed in Annex I to complainants' November 16, 1995 discovery request. Complainants were reminded that their causes of action against DOE under the ERA and TSCA had been dismissed and the complainants therefore had no remedy in this forum against DOE for retaliatory actions for whistleblowing because of security clearance violations; that, as indicated in the Order of August 14, 1995, discovery was confined to the timeliness of the complaints; and that DOE's motion for a protective order against responding to the discovery to which Annex I was attached had been granted on December 5, 1995 because the discovery was not related to the timeliness issue; (2) denying complainants' motions complaining about the responses to the discovery which had been allowed because, although the original DOE response to the request for E-mail discovery was inadequate because of an innocent mistake in the computer search instructions, the mistake had been corrected; (3) ordering DOE to re-file its responses to interrogatories, signed under oath by a responsible DOE official other than an attorney representing DOE; (4) allowing complainants additional time to file a list of other DOE agencies to be queried for responses to the discovery; to inspect, on DOE premises, any originals of copies of documents already produced in discovery; and to file a list of other DOE officials as well or better qualified to make the search than respondent Howse-Smith and her husband; (5) deferring ruling on Complainants' December 5, 1995, and January 9, 1996 motions for sanctions for DOE's conducting a security clearance interview and requiring a psychiatric evaluation of complainant McQuade, and ordering the parties to show cause why the complaint should not be amended to include the allegations of complainants' motion for sanctions; and (6) deferring ruling on DOE's pending dispositive motions pending resolution of discovery issues and additional submissions by the parties on the timeliness issue.

    Finally, in the March 8, 1996 Order, the undersigned found the complainants' vilification of a letter sent by DOE attorney Ivan Boatner and of Mr. Boatner himself unwarranted and improper, and complainants' charges that Mr. Boatner had acted in a sexist manner by using the correct pronoun to describe an Order of the undersigned baffling. Complainants' counsel was reminded that his attorney fees had been substantially reduced in another matter before the Office of Administrative Law Judges because of his insistence on submitting unnecessary and/or irrelevant pleadings, and that, in order to avoid a similar outcome in this matter, he would be well advised to practice greater restraint in the future.

    On May 8, 1996, an Order was issued: (1) deferring a resolution of complainants' motion for default judgment against respondents for alleged destruction of E-mail computer backup evidence relevant to the merits pending determination of the respondents' dispositive motions; (2) amending the complaint to add the allegation that DOE's conducting a security clearance interview and requiring a psychiatric evaluation of complainant McQuade was unlawful retaliation; (3) ordering a search of additional DOE agencies for responses to the discovery permitted under the court's November 20, 1995 Order under the supervision of three additional DOE employees; and (4) requiring additional submissions with regard to DOE's pending dispositive motions to be made within 45 days.

    On July 17, 1996, an Order was issued (1) denying complainants' motion to lift a so-called gag order requiring complainants' counsel to communicate in writing with respondents' counsel because of personal attacks, including calling Ms. Fowler and Mr. Boatner "Nazis," and referring to Mr. Boatner as "a redneck peckerwood;" (2) denying complainants' Motion of Commie Byrum to intervene and motion of four complainants to consolidate all cases, amend May 8, 1996 order and issue default judgment; (3) correcting the amendment to the complaint allowed by Order of May 8, 1996; (4) denying complainants' motion to remedy incomplete searches and consider newly discovered evidence to support equitable tolling re: Hostile Working Environment and Blacklisting, which argued, inter alia, that there should be no time limitation on the time period for discovery "which should embrace all subjects ... ," and that the undersigned should assume jurisdiction over issues involving a letter of January 25, 1995 from Joe LaGrone to the DOE general counsel, which requested, inter alia, an independent investigation of Patricia Howse-Smith's allegations of privacy act violations; (5) denying respondents' motion to strike the May 30, 1996 letter of complainants' counsel on the grounds that it was an unauthorized response to DOE's response to a motion and therefore violated 29 C.F.R. § 18.6(b) but warning complainants that future such violations would not be permitted; and (6) responding to complainants' motion to, inter alia, expedite proceedings by establishing a final briefing schedule on DOE's motion to dismiss and/or for summary judgment, prohibiting continuances, and prohibiting filings unrelated to the motions without the court's express permission. DOE was to submit a consolidated motion to dismiss and/or for summary judgment no later than August 31, 1996, Complainants were to submit a response by September 30, 1996, and DOE was to file a reply no later than October 15, 1996.

genuine issue of fact for the hearing. To defeat a properly supported motion for summary decision, the non-moving party must present affirmative evidence. If the non-movant 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, there is no genuine issue of material fact and the movant is entitled to summary decision.

    The standards for dismissal for failure to state a claim upon which relief can be granted are as follows. The facts alleged in the complaint are taken as true, and all reasonable inferences are made in favor of the non-moving party. A dismissal is purely on the legal sufficiency of the complainant's case. Even if the complainant proved all of its allegations, [s]he could not prevail. In other words, even if the facts alleged are taken as true, no claim has been stated which would entitle the complainant to relief. (Varnadore 6/14/96, slip op. at 58-59).

    Applying these standards, as discussed below, I find that the claims must be dismissed for multiple reasons, including untimeliness, improper parties, failure to state a claim on which relief can be granted, and/or failure to raise a genuine issue of material fact for a hearing under the cited statutes.

    The claims against DOE under the ERA and TSCA have already been dismissed because Congress has not waived DOE's sovereign immunity and DOE is therefore not subject to Department of Labor jurisdiction under those statutes. See Varnadore 6/14/96, Slip op. at 55-60; Teles v. U.S. Department of Energy, No. 94-ERA-22 (Sec'y August 7, 1995); Stephenson v. NASA, 94-TSC-5 (Sec'y July 3, 1995).

    The remaining claims must also be dismissed against Patricia Howse-Smith and the DOE Inspector General ("IG") as individuals. An employment relationship between the complainants and respondents is an essential element of any claim brought under the Acts. (Varnadore 6/14/96, Slip op. at 57-61). The Department of Labor's jurisdiction under the Acts extends only to "employers" and "employees." In Reid v. Martin Marietta Energy Systems, Methodist Medical Center of Oak Ridge, Tennessee, Medical Management, et Administrative Law Judge., No. 93-CAA-4 (Sec'y April 3, 1995), the Secretary applied the United States Supreme Court's test for an employment relationship as articulated in Nationwide Insurance Company v. Darden, 112 S. Court. 1334 (1992) to a complainant in a whistleblower case,

and found that dismissal was proper. That test requires an analysis of

the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

    Complainants have failed to allege that the IG is or was their employer. Complainants also failed to allege, until their Response to Court-Ordered DOE Motion to Dismiss filed November 7, 1996, at 20, that Howse-Smith is or was their employer. Although they now allege that she is an employer or employment agency, they have failed to raise any material issues of fact for hearing that such a relationship exists. McQuade's November 1, 1994 EEO complaint indicates that, at most, he once had a supervisory relationship with Howse-Smith, but even this relationship terminated in approximately 1992, after she filed a complaint of employment discrimination against him and he was transferred away from her supervision to the Safeguards and Security Division. It is undisputed that, like the complainants, Howse-Smith and the IG are both also DOE employees.

    Complainants argue that Howse-Smith's status is dependent on facts to be elicited at hearing, so there is no reason to reach the issue without her testimony at hearing. (Complainants' Response to Court-Ordered DOE Motion to Dismiss ("C. Response") 20). This argument confuses the burdens assumed by the parties in motions for summary decision. A party opposing such a motion is not permitted to rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue of fact for the hearing, including affirmative evidence. Howse-Smith is under no obligation to prove that she is not an employer. Rather, the complainants have the burden, prior to being permitted to proceed to a hearing, to raise a genuine issue of fact for hearing that she is an employer, by presenting affirmative evidence. They have failed to do so here.

    As discussed above, after the ERA and TSCA claims were

dismissed, the complainants were given the opportunity to plead facts alleging violations of CAA, SDWA, SDWA and/or CERCLA, the only remaining causes of action. These facts, which complainants set forth in their First Summary of Environmental Protected Activity, are summarized above. They indicate that some DOE employees have had problems with seizure disorders, credit problems, alcohol abuse, drug abuse, drug dealing, psychiatric disorders, stealing, prostitution, violent behavior, illicit sex, and other anti-social behavior, that some of these employees have been granted security clearances, and that some have quit, been fired, or suspended and had their security clearances revoked while others have been retained on the job with their security clearances intact. The protected activity alleged is that the complainants raised concerns that the work assignments of such employees "pose[d] dangers of environmental releases, spills, accidents and radiation exposures ... ."

    A protected activity is an essential element of the complainants' case. An employee's asserted belief " that the environment may be negatively impacted by the employer's conduct' " is not sufficient to establish a protected activity under the environmental acts. Minard v. Nerco Delamar Company, 92-SWD-1, Sec'y January 25, 1994, slip op. at 5; Crosby v. Hughes Aircraft, 85-TSC-2, Sec'y August 17, 1993, slip op. at 13-14. An employee's complaint must be "grounded in conditions constituting reasonably perceived violations" of the Acts. Tyndall v. United States Environmental Protection Agency, Nos. 93-CAA-6; 95-CAA-5 (ARB June 14, 1996), slip op. at 4.

    I find that the complainants' allegations, even if taken as true, merely constitute the assertion of a belief " that the environment may be negatively impacted by the employer's conduct' " and are thus too speculative to state a claim of protected activities under the Acts. These allegations rest solely on the questionable assumption that employees with bad records will cause environmental releases, spills, accidents and radiation exposures in the future. It is doubtful that such character evidence would even be admissible at a hearing in this case. See 29 C.F.R. § 18.404 (character evidence not generally admissible to prove conduct). It is, of course, equally plausible that employees with bad records may, given a second chance, do their jobs without endangering the environment, and that employees with good records will, despite all good will, mistakenly engage in activities that cause environmental damage. The complainants have failed even to allege that the employees referred to caused, or threatened to cause, environmental releases, spills, accidents and radiation exposures in the past.

Thus, these allegations do not constitute the assertion of a reasonable belief that the employees referred to were about to commit violations of the CAA, SDWA, SWDA, and/or CERCLA, and are not grounded in conditions constituting reasonably perceived violations of the Acts.

    Respondents concede that #4 of Mr. McQuade's examples may involve protected activities under these Acts. During late 1994, a personnel security analyst from Oak Ridge, who had been sent to the Portsmouth, Ohio enrichment plant to conduct security interviews, was informed by an employee in the plant library that plant management was joking about the intentional release of toxic gases into the atmosphere. Respondents argue, however, that McQuade does not allege that he was the DOE employee involved or that he took any action as a result. McQuade counters that he should not have to answer this contention until he is allowed further discovery. (C. Response 25). This argument again misconstrues the nature of the parties' burdens. Discovery is unnecessary for complainants to counter the respondents' assertion that they have failed to state a claim with respect to protected activity because necessary facts to do so are within the complainants' own personal knowledge. McQuade should have personal knowledge of whether he is the DOE employee involved or whether he took any action as a result. Since he has refused even to make an allegation to that effect, the obvious inference is that he was not the DOE employee involved.

    It thus appears that, rather than ensuring that the complainants had personal knowledge of their protected activity under every statutory authority invoked prior to filing their complaints with Wage-Hour, the CAA, SDWA, SWDA, and CERCLA claims were mere afterthought. The only cases where whistleblowing on security clearance violations has been found to be a protected activity were brought under the ERA. Once the TSCA and ERA claims were dismissed, complainants were given the opportunity to come forward with specific claims of protected activities under CAA, SDWA, SWDA, and/or CERCLA, but they have failed to do so. Since the complainants' allegations, even if taken as true, fail to articulate a connection with a protected activity under these Acts, and the complainants have failed to raise a material issue of fact that a protected activity was involved in these events, the complainants cannot, as a matter of law, establish a prima facie case of a violation of the Acts.

    Mr. McQuade filed his complaint on April 3, 1995; Mr.

Warden filed his complaint on April 12, 1995; and Ms. Johnson filed her complaint on April 30, 1995. The CAA, SDWA, SWDA, and CERCLA have limitations periods of 30 days. Accordingly, any alleged discriminatory actions or reprisals that occurred more than thirty days before these dates are time barred. Respondents argue that none of the complainants have made a showing that DOE took any discriminatory action against them within the limitations period. Complainants argue that their complaints are timely because respondents have committed continuing violations involving a hostile working environment.

    To establish a continuing violation, complainants must prove that a series of alleged discriminatory actions are somehow connected, rather than mere isolated decisions involving disparate facts, and that at least one of the discriminatory actions occurred within the limitations period. It is not sufficient to show simply that the actions complained of affected their working conditions. If no discriminatory act occurred within the thirty day period prior to the filing of the complaint, the complaint is time barred. Varnadore v. Oak Ridge National Laboratory and Lockheed Martin Energy Systems, Inc., Nos. 92-CAA-2, 92-CAA-5, 93-CAA-1 (Sec'y January 26, 1996) ("Varnadore 1/26/96"), slip op. at 73; Bonanno v. Northeast Nuclear Energy Company, 92-ERA-40, 41 (Sec'y August 25, 1993); Gillilan v. TVA, 92-ERA-46, 50 (Sec'y April 20, 1995).

    Johnson alleges as a discriminatory act that, since her transfer to the Washington Office, she has never been assigned to any audit work in Oak Ridge Tennessee, and that, because DOE has failed to identify any particular date or time of any specific single decision to keep her from auditing Oak Ridge, the statute of limitations has not begun to run. (C. Response at 2).

    As the respondents point out, it is undisputed that, according to her September 10, 1995 declaration, Ms. Johnson is satisfied with her current work at DOE and her current supervisors, has consistently received outstanding performance appraisals since June 22, 1991, and has received a special cash award for her efforts in support of the DOE Secretary's human experimentation task force. Thus, there is no triable issue of fact that complainant has been subjected to any acts constituting a hostile work environment within the thirty-day limitations period.

    Assuming that a DOE management decision not to send Ms. Johnson to Oak Ridge to make audits is even a discriminatory act, complainant must

raise a material issue of fact that such a decision was in fact made, i.e. a discriminatory act was committed, within the thirty-day limitations period. A management decision not to send Ms. Johnson to Oak Ridge to make audits, if taken outside the limitations period, is not sufficient to render the claim timely even if Ms. Johnson continues to suffer the effects of such a decision. Varnadore, 1/26/96, slip op. at 76; United Airlines v. Evans, 431 U.S. 553 (1977). Despite the opportunity to conduct discovery on the timeliness issue, however, complainant has failed to come forward with any affirmative evidence by affidavit or otherwise that such a management decision was made during the limitations period or at any other time. Ms. Johnson's own declaration states only that "[i]t is completely inconceivable that this failure to send me to Oak Ridge is either a coincidence or a random event" since her supervisors have consistently praised her, rated her outstanding, etc. This language indicates that complaint has never even inquired of her supervisors as to whether they made a decision not to send her to Oak Ridge and/or why she has not been sent to Oak Ridge. This lack of inquiry suggests that she herself did not view her lack of assignments at Oak Ridge as an adverse act.

    Even if Johnson could prove that the failure to assign her to an audit at Oak Ridge within thirty days was a protected act, however, she has failed to raise a triable issue of fact that such failure was motivated by a protected activity, as discussed above.

    Warden alleges that he has suffered continuing retaliation in the workplace as a result of protected activities including a hostile environment, in that respondent Howse-Smith and Branch Chief Nettie Hudson have shown hostility to him in every encounter, including within the thirty day prior prior to the filing of his complaint. Even if Warden could prove that such hostility did occur within the thirty days, however, he has failed to raise a triable issue of fact that such hostility was motivated by a protected activity, as discussed above.

    McQuade alleges that his complaint is timely because he did not learn that he had a cause of action until the week before he filed his April 3, 1995 complaint. He complains that, at that time, he discovered the Howse-Smith settlement agreement. As DOE points out, however, he actually learned of the

contents of the settlement agreement on June 23, 1994, almost a year before filing the complaint. His EEO complaint also refers to an August 1, 1994 meeting at which the settlement agreement was discussed. McQuade asserts that the "wrong forum" doctrine should toll the statute of limitations because he filed an EEO complaint. This doctrine only applies if the filing in the "wrong forum" is timely, which is not the case here. Even if McQuade could prove entitlement to a waiver of the statute of limitations, however, he has failed to raise a triable issue of fact that any adverse actions against him were motivated by a protected activity, as discussed above.

    DOE argues that the July 17, 1996 amendment to the complaint regarding the security clearance interview and psychiatric evaluation of McQuade should be dismissed under the "law of the case," because "violations of DOE's security clearance regulations, which are located at 10 CFR 710, are exclusively within DOE's purview." This is a misstatement of my previous holding, which discussed protected activities, not adverse actions. A security clearance interview and psychiatric evaluation may well be adverse actions prohibited by the whistleblower statutes. See Young v. Philadelphia Electric Co., 87-ERA-11 (Sec'y Dec. 18, 1992). The amendment must be dismissed, however, because, as discussed above, McQuade has failed to raise a triable issue of fact that any adverse actions against him were motivated by a protected activity under the remaining statutes.

    1. Patricia Howse-Smith and the DOE Inspector General are hereby DISMISSED as parties.

    2. The claims of Virginia Johnson, Kenneth Warden and Dennis McQuade are hereby DISMISSED.

      EDITH BARNETT
      Administrative Law Judge

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