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

   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".

   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:

   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.

   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

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

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).

   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

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.

   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.

   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.

       GEORGE G. PIERCE
       Administrative Law Judge

Date: JAN 22 1991

Boston, Massachusetts