DATE: April 20, 1995
CASE NO. 89-ERA-43
IN THE MATTER OF
SANTIAGO GOMEZ,
COMPLAINANT,
v.
UNIVERSITY OF PUERTO RICO,
MEDICAL SCIENCE CAMPUS,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case arises under the employee protection provision
of the Energy Reorganization Act of 1974, as amended (ERA),
42 U.S.C. § 5851 (1988). [1] On September 30, 1991, the
Administrative Law Judge (ALJ) issued a decision (R. D.)
recommending that this case be dismissed because it was untimely
filed, and because Complainant Santiago Gomez failed to prove
that he had been retaliated against in violation of the ERA's
employee protection provision. After review of the entire
record, I conclude that the ALJ correctly recommended that the
case be dismissed.
BACKGROUND
Complainant Santiago Gomez began working at Respondent
University of Puerto Rico Medical Sciences Campus (MSC), as a
Senior Associate on July 26, 1974. On or about October 1, 1978,
MSC assigned Gomez the responsibilities of a Radiation Safety
Officer (RSO), which apparently were not included in MSC's
personnel Classification Plan. Between 1978 and 1988 Gomez tried
in various ways to persuade MSC officials to create a Radiation
[PAGE 2]
Safety Officer position for him so that his salary and position
description would conform to the work he was already doing.
R. D. at 2-3. On March 10, 1989, Gomez wrote a letter of
resignation from his "title and functions" as RSO. Id. at
3-4. However, he did not resign his position as Assistant
Medical Radiations Physicist. Id. He also stated that if
an RSO position were created he would be happy to serve in it.
Id. On April 19, 1989, Gomez filed a complaint with the
U. S. Department of Labor (DOL) alleging that MSC retaliated
against him by failing to create and appoint him to a permanent
RSO position. Id. at 1. Gomez also claimed that he told
the NRC and an MSC official about his dissatisfaction with
radiation protection standards at MSC, and MSC failed to take any
corrective action. Id. at 3.
The ALJ found that Gomez believed that he was retaliated
against when he submitted his letter of "resignation" from his
RSO "position" on March 10, 1989. Therefore, his April 19, 1989
complaint was filed more than 30 days after he became aware of
the alleged retaliation and was filed out of time. Id. at
6. In the alternative the ALJ ruled that Gomez had not
established that he had been retaliated against in violation of
the ERA employee protection provision. Id.DISCUSSION
I concur with the ALJ's conclusion that Gomez's
complaint was not timely filed. When Gomez filed his April 19,
1989 complaint, an individual alleging a violation of the ERA was
required to file a complaint within 30 days after the occurrence
of an alleged violation. 42 U.S.C. § 5851(b) (1988); 29
C.F.R. § 24.3(b)(1992). [2]
Gomez's March 10, 1989 "resignation" stated, in pertinent
part: "Due to the fact that what was promised by the Dean of
Administration in his letter of August 22, 1988 [3] has not been
fulfilled, I feel obliged to resign from my title and functions
as a Radiation Protection Officer (RSO) as of April 7, 1989."
Assuming for the sake of argument that MSC's failure to create an
RSO position for Gomez constituted retaliatory action, and
Gomez's resignation from his RSO responsibilities on March 10,
1989, constituted a constructive partial discharge, [4] his
complaint was filed more than 30 days after the constructive
discharge and was untimely. [5]
Even if Gomez's complaint had been timely filed, it should
be dismissed. Gomez did not establish that he was retaliated
against by MSC for engaging in activity protected by the ERA
employee protection provision. Gomez did establish that: 1) For
many years he performed the functions of a radiation safety
officer, but was never given that title in any formal way; 2) He
requested on several occasions that MSC create an RSO position
[PAGE 3]
with a salary equal to the responsibilities of the position, and
formally place him in it; 3) On March 10, 1989 he wrote a letter
to MSC officials stating that, as it was clear that they were not
going to create an RSO position he was "obliged to resign" from
his functions as an RSO. He stated that he would continue to
work for MSC in his other capacity as "Assistant Medical
Radiations Physicist." He also offered to serve as RSO should
the post "be established on campus with the salary and status it
deserves;" and 4) On March 20, 1989 (after he had written his
"resignation" letter), he complained to an official of the NRC
about radiation protection standards on the campus.
A violation of the ERA whistleblower provision is proven
when the complainant establishes by a preponderance of the
evidence that: 1) he was an employee subject to the Act; 2) he
was discharged or otherwise discriminated against with respect to
his compensation, terms, conditions, or privileges of employment;
and 3) the alleged discrimination arose because the employee
engaged in protected activity within the meaning of the ERA.
See, DeFord v. Sec. of Labor, 700 F.2d 281, 286 (6th Cir.
1983). The only protected activity that Gomez alleged was his
complaint to the NRC on March 20, 1989. Gomez failed to prove
that MSC took any kind of retaliatory action against him
following that complaint. In the absence of such proof, Gomez's
complaint must be dismissed.
CONCLUSION
The ALJ concluded that Gomez filed his complaint more than
30 days after he believed he was discriminated against, and
that, assuming arguendo a timely filing, "there has
not been established any discriminatory action on the part of the
University." R. D. at 6. I concur with these conclusions.
Therefore, the case is dismissed.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D. C.
[ENDNOTES]
[1]
The amendments to the ERA contained in the National Energy
Policy Act of 1992, Pub.L. 102-486, 106 Stat. 2776 (Oct. 24,
1992), do not apply to this case in which the complaint was filed
prior to the effective date of the Act. For simplicity's sake I
will refer to the provision as codified in 1988.
[2]
Section 2902(b) of the Energy Policy Act of 1992, Pub. L. No.
102-486, 106 Stat. 2776, amended the time period for filing a
complaint to 180 days for claims filed on or after the date of
its enactment, October 24, 1992. See Section 1902(i) of Pub. L.
102-486.
[3]
Reference is to a letter, in Spanish, from the Dean of
Administration to Gomez which was offered into evidence by
complainant and accepted as Exhibit 5 by the ALJ. The ALJ
requested that either party provide a translation of this letter,
however no translation appears in the record. T. 67, 68.
[4]
The doctrine of constructive discharge has long been recognized
in discrimination cases. See, e.g. Johnson v. Old
Dominion Security, Case Nos. 86-CAA-3, 86-CAA-4, 86-CAA-5,
Sec. Final Dec. and Ord., May 29, 1991, slip op. at 19-20.
However, I have not located any case which has dealt with the
question whether an employee can be constructively discharged
from a portion of his or her responsibilities. The facts
of this case do not necessitate further exploration of this
theory.
[5]
Gomez asserted below that although he wrote the "resignation"
letter on March 10, he did not deliver it to MSC until March 21,
after the meeting among the NRC official, an MSC official,
and Gomez. T. 77. Even if I were to accept this assertion, it
would not affect my determination that the complaint was untimely
filed. The March 10 letter clearly stated that Gomez realized
that MSC was not going to create the RSO position for him. Thus,
at least by March 10, Gomez had specific knowledge that MSC did
not intend to establish the RSO position. March 10, therefore is
an appropriate date from which to measure the running of the 30-
day limitations period. See Elliot v. Sperry Rand Corp.,
79 F.R.D. 580, 585 (D. Minn. 1978); OFCCP v. CSX
Transportation, Inc., Case No. 88-OFC-24, Sec. Dec. and Ord.
of Remand, Oct. 13, 1994, slip op. at 22-23.
