U.S. Department of Labor
Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109
Date JAN 22 1991
Case No.: 90-ERA-33/34
In the Matter of
Donald W. DelCore, Sr.
Complainant
v.
Northeast Nuclear Energy Co.
Respondent
Appearances:
Donald W. DelCore, Sr., Pro Se
For the Complainant
and
Richard K. Walker, Esq.
For the Respondent
Before: GEORGE G. PIERCE
Administrative Law Judge
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RECOMMENDED DECISION AND ORDER ALLOWING MOTION FOR
SUMMARY JUDGEMENT AND DISMISSING COMPLAINTS
These are proceedings under Section 210 of the Energy
Reorganization Act of 1974, as amended, 42 U.S.C. § 5851
(hereinafter referred to as "the Act") and its implementing
regulations found in 29 C.F.R. § 24, whereby employees of
employers subject the to the Act and regulations may file
complaints and receive certain redress upon a showing of being
subject to discriminatory or retailiatory action by the
employers for participating in protected activity. A
pre-hearing conference in this matter, was held in New London,
Connecticut on October 31, 1990, at which time, the Respondent
presented a Motion for Summary Judgement and a Motion To Compel
Compaint's Attendance at Deposition. Oral argument was heard
on both motions. Briefs were filed by Respondent in support of
both motions and have been given full consideration along with
the oral arguments of the parties.
Donald W. DelCore, Sr. will be referred to herein as the
"Complainant"; the U.S. Dept. of Labor will be referred to
herein as "DOL" or as the "Secretary"; and Northeast Nuclear
Energy Co. will be referred to herein as "Respondent" or as the
"Employer".
PROCEDUAL HISTORY
These cases arise out of two complaints filed by Complainant
under Section 210 of the Act against Respondent alleging that
Respondent discriminated against and/or took retaliatory action
against Complainant for participating in protected activity.
The first complaint is dated January 31, 1990 and alleges
that the Respondent discriminated against Complainant by
stating in Complainant's 1988 Employee Development Report
(i.e. evaluation) that Don's [i.e. Complainant's] use of
personal and sick time is somewhat higher than the department
average." Complainant further alleges that other employees in
his department did not receive any comments in their
evaluations regarding their use of personal and sick time. In
his complaint, Complainant further states that he received this
Report (i.e. evaluation) around March 15,1989 but delayed in
filing his complaint because he had to check with other
employees to see what their evaluations said.
The second complaint is dated March 18, 1990 and raises two
separate issues as follows:
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1. Complainant contends that his 1989 Employee Development
Report (i.e. evaluation) which he received on February 23,
1990, is discrimminatory because his ratings in three
performance areas are lower than he believes they should be.
This portion of the complaint further states that although the
Employer has rated him at 004 classification and paid him a
merit bonus for his work in 1989, it has continued to
discriminate against him in their assessment of his work.
2. Secondly, Complainant contends that in April 1989 he was
"unfairly removed from overtime work" when he was recovering
from a back condition although his doctor had authorized him to
work 60 hours per week on light duty. This portion of the
complaint further states that in early 1990 a co-worker was
allowed to work overtime although his hand, fingers and arm
were in a cast. He states further that the supervisor of
Respondent who denied him overtime work in April, 1989 was the
same supervisor who allowed his co-worker to work overtime in
early 1990. He concludes by stating that this situation did
not come to his attention until March 1, 1990.
By letters dated April 13, 1990 and May 12, 1990 to the
Complainant, The District Director of the Department of Labor
denied relief to the Claimant under the Act, stating that his
investigations bad disclosed that no discrimination by
Respondent had occured as alleged in the two complaints. The
Complainant then filed a timely appeal of such denials and this
matter is now before the undersigned Administrative Law Judge
for Decision.
On June 9, 1990 the Respondent filed a Motion for Summary
Judgment, together with a supporting Affidavit and Memorandum.
On October 31, 1990 in New London, CT a pre-hearing conference
was held in this matter. At that time, full oral argument was
presented by both parties on the Motion for Summary Judgment
and the matter was taken under advisement by the undersigned.
RULING ON MOTION FOR SUMMARY
JUDGMENT
In ruling on a Motion for Summary Judgment, I am required to
examine at face value the complaints in question and decide,
assuming the allegations of the compliants to be true, whether
they form a basis for granting relief under Section 210 of the
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Act. Using these guidelines, I will now examine the two
complaints separately, as follows:
First Complaint Dated January 31, 1990
In his complaint letter of January 31, 1990 Complainant
states that he received the Employee Development Report around
March 15, 1989.
Section 210 provides:
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 ... a
complaint with the Secretary of
Labor...alleging such discharge or
discrimination.
42 U.S.C. § 5851(b)(1) (emphasis added); see also 29 C.F.R.
§ 24.3(b) (parallel 30-day time limit in DOL regulations). In
this case, Complainant's January 31, 1990 complaint is based on
the allegation that his 1988 evaluation constituted
discrimination violative of Section 210 because it contained
the statement that his use of personal and sick time was above
the average for his Department.
The 1988 evaluation was communicated to Complainant around
March 15, 1989. It was at that time that complainant was made
aware of the statement of which he now complains, and it is on
that date that the 30-day limitations period began to run.
Because the January 31, 1990 complaint was filed nearly a year
after the allegedly discriminatory act occurred and was brought
to his attention, his claim is clearly time-barred.
Nor is there any basis for tolling the 30-day time limit in
this case. As controlling precedent makes clear, "equitable
tolling" applies only where the employer affirmatively sought
to mislead the employee regarding the existence of a claim or
where some extraordinary event precluded the employee from
asserting the claim. Moreover, absent concealment or
fraudulent conduct on the part of the employer, the focus for
determining whether a claim is time-barred is the date of the
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allegedly discriminatory act, not the date on which the
Complainant first comes to believe that the act was
discriminatory.
In Miller v. International Telephone & Telegraph Corp., 755
F.2d 20 (2d Cir.), cert. denied, 474 U.S. 851 (1985), for
example, the Second Circuit emphasized that, to exercise its
equitable powers to toll a statute of limitations in an action
arising under the Age Discrimination in Employment Act
("ADEA"), there must be some misleading conduct on the part of
the employer or some other "extraordinary" event:
"The [ADEA] time periods commerce upon the employer's
commission of the discriminatory act and are not tolled
or delayed pending the employee's realization that the
conduct was discriminatory unless the employee was
actively misled by his employer, he was prevented in some
extraordinary way from exercising his rights, or he
asserted his rights in the wrong forum..."
In this connection, see also Dillman V. Combustion
Engineering 784 F.2d 57, 60-62 (2d Cir. 1986) and Cerbone v.
Intl. Ladies' Garment Workers Union 768 F.2d 45, 48-50(2d Cir.
1985). To the same effect, see a recent decision of the
Secretary of Labor, Kent v. Barton Protective Services, case
No.84-WPC-2, Sept. 28, 1990.
In addition to being time-barred, the first complaint also
fails to state a cliam upon which relief may be granted. In
order to prove a violation of Section 210, the Complainant must
show he engaged in protected activity, that the Respondent knew
of the protected activiy, and that the Respondent took action
adverse to the Complainant because of the protected activity.
E.g., Lopez v. West Texas Utilities, Case No. 86-ERA-25, slip
op. at 2-3 (Secretary's Final Decision and order) (July 26,
1988). Thus, the necessary predicate for a Section 210 claim
is an adverse employment action: absent proof of such action,
complainant's claim fails as a matter of law. See, e.g.,
Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d
1395, 1424 (D.C. Cir.) ("In the absence of a finding that the
plaintiff has suffered adverse action, a retaliation claim
fails as a matter of law. (citing Evans v. Davie Truckers,
Inc., 769 F.2d 1012, 1014 (4th Cir. 1985)), reh'g on other
issues, 852 F.2d 619 (D.C. Cir. 1988).
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In this case, Complainant's claim the his 1988 evaluation is
discriminatory fails because the statement that his use of
personal and sick time in 1988 were above the Department
average does not constitute "adverse action." First, the
statement does not amount to adverse action within the meaning
of Section 210 because Compainant's complaint makes no claim
that he has been injured in any way by the statement of which
he complains. In fact, it is conceded that the facts stated in
the evaluation were accurate. Moveover, in his second
compliant of March 1990, Complainant also concedes that he was
paid a merit bonus for his work during the period in question.
In summary, the First Complaint dated January 31, 1990 must
be dismissed for two reasons: 1. It is time-barred under the
Act; and 2. it fails to state a claim upon which relief may be
granted.
Second Complaint Dated March 18, 1990
The first allegation of the Second Complaint alleges that
Complainant's 1989 evaluation by Respondent, which he received
February 23, 1990, is discriminatory because his ratings in
three performance areas are lower than he believes they should
be.
On the face of it, the first allegation of this complaint is
deficient because it fails to state a cliam upon which relief
may be granted. There is no allegation that the Claimant has
been injured in any way by the evaluation. In fact,
Complainant does not challenge the overall rating of 004 and
even concedes that he was paid a merit bonus for his work in
1989. In summary, there has been no allegation of retaliatory
or discrimminatory action by Respondent to afford relief to
Complainant under the Act.
The second allegation of the March 18, 1990 complaints
alleges that he was unfairly removed from overtime work in
April 1989 whereas a co-worker with more severe disabilities
was allowed overtime work in early 1990.
Again, as in the case of the first complaint, this
allegation is clearly time-barred. (See Discussion above).
The discriminatory action, if such took place, occurred in
April 1989 when Complainant was refused overtime work. Since
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the complaint was not filed until March 18, 1990, it was
clearly far beyond the thirty day Statute of Limitations period
set forth in the Act.
SUMMARY OF FINDINGS
In summary, both complaints must be dismissed in their
entirety for the reasons discussed.
In view of my findings and conclusions in this matter, I
find it unnecessary to address the issues of Res Judicata,
raised by Respondent in its motion for Summary Judgment, and,
therefore, make no findings on that issue. I also find it
unnecessary to rule on Respondent's Motion for order Compelling
Complainant's Attendance at Deposition since the complaints
will be dismissed by this Decision and order and no hearing
will be required.
RECOMMENDED ORDER
For all of the reasons discussed above, my Recommended
Decision and order is that Respondent's Motion for Summary
Judgment be ALLOWED and that Complainant's two complaints be
ORDERED DISMISSED.