On August 30, 2000, employer was notified by OSHA that an investigation had taken place and that OSHA determined that the claimant had failed to file a timely complaint. On that same day, the claimant was notified by OSHA that a fact finding investigation had been concluded and that the investigation had not verified that discrimination was a factor in the actions complained of by the claimant. The claimant was also notified that the claim was dismissed because of the claimant's failure to file the complaint within the 180 days required by statute. OSHA determined that the date on which the time limit began was October 26, 1999, the date on which the claimant signed the election form that stated the claimant would "separate and retire."

   The claimant requested, on September 3, 2000, that a formal hearing be conducted. On October 23, 2000, a conference call was conducted between the undersigned and all interested parties. At that time, the employer informed the undersigned of the intent to submit a motion to dismiss. On November 11, 2000, such motion was received. The employer moves for dismissal based on the claimant's alleged failure to file a timely complaint and the claimant's alleged failure to establish a prima facie case of discrimination. The claimant responded to that motion on November 27, 2000.

Timeliness

   The employer argues initially that the claim should be dismissed because the complaint was not timely filed. The employer argues that the election form and subsequent waiver signed by the claimant are more than enough to give the claimant unequivocal notice that on June 30, 2000 the claimant's employment with PECO would end. Thus, October 26, 2000 should be the date on which the time limitation begins to run. The claimant argues in the alternative that the date of his receipt of a revised annuity payment statement should be the proper date for the start of the time limitation period because that is the time at which the claimant felt the effects of the employer's adverse employment action. If this is determined to be the proper date, then the claimant's complaint would have been timely filed.

   "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 180 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). The implementing regulations state that "any complaint shall be filed within 180 days after the occurrence of the alleged violation." 29 C.F.R. § 24.3(b)(2). The proper focus when determining the date at which to begin the calculation of the 180 days, is the time of the discriminatory act, not at the time when the effects of that act become most painful. Delaware State College v. Ricks, 449 U.S. 250, 258 (1980). The filing period for a whistleblower complaint begins running on the date that the employee is informed of the challenged employment decision, rather than the time that the effects of the decision are ultimately felt. See Nunn v. Duke Power Co., 84-ERA-27 (Sec'y July 30, 1987). Where the alleged discriminatory act is a reduction in force, the discriminatory act is the communication of notice of the reduction in force to the claimant as opposed to the last date of employment. Riden v. Tennessee Valley Authority, 89-ERA-49 (ALJ Feb. 9, 1990), aff'd (Sec'y July 18, 1990).

   The rule regarding when the time limitation begins to run is premised on an employee's having been given final and unequivocal notice of an employer's decision having delayed consequences. Only upon receipt of such notice does the filing period begin to run. Where the employer's letter giving notice of its decision on a disciplinary hearing indicated that she would be terminated unless she secured other employment with the employer before the end of a temporary assignment, the decision was not equivocal but in form final and unequivocal. Obtaining of other suitable employment would only permit the employee to avoid the termination it would not negate the alleged discriminatory decision itself. Therefore, the notification of the decision rather than the final day of the temporary assignment triggered the statute of limitations with respect to the employee's claim of retaliatory termination of her employment. English v. Whitfield, 858 F.2d 957 (4th Cir. 1988).

   The time limitation period runs from the date the employee receives final, definitive and unequivocal notice of the adverse employment action. "Final" and "definitive" notices denotes communication that is decisive or conclusive, i.e. leaving no further chance for action, discussion, or change. Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).

   The Third Circuit Court of Appeals has placed the focus on the time of the discriminatory act, not the time when consequences of the act becomes "most painful" in cases involving alleged discriminatory employment actions. Watson v. Eastman Kodak Co., ___ F.3d ___, 2000 WL 1864346 (3rd Cir. 2000).

   On October 26, 1999, the claimant read and signed a "PSM Election Form" for the "Workforce Reduction Program." The pertinent language of that form states that the claimant understands

"that in exchange for [the employee] receiving enhanced benefits under the 1998 Workforce Reduction Program ("Program") [the employee] will be required to sign the attached Full Waiver and Release of Claims. [The employee] understands that [the employee] will be given 45 days to review the Full Waiver and Release of Claims, and that if [the employee] chooses not to sign the Release [the employee] will be terminated without any retirement or separation benefits."

   Accordingly, October 26, 2000 is the proper date from which to determine the time limitation period. I base this finding on the fact that on that date the claimant voluntarily signed the election form informing the claimant that on June 30, 2000 the claimant's employment with PECO would end. The language of this election form is unequivocal in that it clearly states that the claimant made a conscious decision to separate himself from the employer and elected to retire with an enhanced benefits package and retirement benefits.

   There is nothing equivocal about the form and it clearly states that at a specified date, the claimant would no longer be employed by PECO. It is apparent from the face of the election form that the claimant's final work date was to be June 30, 2000. The claimant also signed the required "Full Waiver and Release of Claims." Based on the foregoing, it is apparent that the 180 day time limitation began on the date that the claimant signed the election form, October 26, 1999. On that date, it was unequivocal and final that the claimant's employment with the employer would end on June 30, 2000. It is irrelevant that the effects of that termination were not felt until months later.

   The claimant filed his complaint with the Secretary of Labor on June 30, 2000. It is clear that June 30, 2000 is well outside the 180 day limitation required for filing by both the statute and regulations. Accordingly, the employer's motion to dismiss based on timeliness is granted.

   In addition, even if the plaintiff's claim were considered timely filed, the claim would be dismissed because the plaintiff has failed to establish a prima facie case of discrimination based on the plaintiff's whistle blowing activity.

Prima Facie Case of Discrimination

42 U.S.C. § 5851(a)(1)(A)&(D).

   The employer, in its Motion to Dismiss, does not address whether it believes the claimant's activities are protected by the Act. Having reviewed the evidence submitted by the parties and the evidence of record, I find that the claimant has established the first element of his prima facie case. The claimant's reports to the NRC, as well as to the management of the employer, afford the claimant coverage under the Act. Thus, I find that the claimant has established, by a preponderance of the evidence, that he engaged in protected activity under the Act.

   The claimant must then establish that the employer knew of the claimant's protected activity. The fact that the employer was aware of the claimant's reports is well supported by the evidence of record. The claimant reported his safety concerns to both the management of the Peach Bottom Station and to the NRC. The employer was notified of the results of the NRC investigation. Therefore, it is apparent that the employer was well aware of the claimant's protected activity. Accordingly, I find that the claimant has established by a preponderance of the evidence the second element of his prima facie case, that the employer was aware of the claimant's protected activity.

   The final element that the claimant must establish by a preponderance of the evidence is that the claimant must proffer sufficient evidence to raise a reasonable inference that the protected activity was the likely reason for the adverse employment action. The claimant does not offer any evidence in his June 30, 2000 complaint, nor his response to the employer's Motion to Dismiss that establishes a causal connection between the protected activity and the adverse employment action. The claimant merely states that in 1996 he reported potential safety violations to the employer and the NRC. The claimant makes no connection between this activity and the workforce reduction program that occurred four years later.

   There is approximately a four year gap between the claimant's protected activity and the adverse employment action. The Secretary has held that a "four year interval, without credible evidence to the contrary, establishes the absence of any causal connection between [the protected activity and the adverse action]." Bonnano v. Stone & Webster Engineering Corp., 95-ERA-54 (ARB Dec. 12, 1996), citing Shusterman v. EBASCO Services, Inc., 87-ERA-27, (Sec'y Jan. 6, 1992), slip op. at 8-9, aff'd mem., Shusterman v. Secretary of Labor, No. 92-4029 (2d Cir. Sept. 24, 1992). The claimant has proffered no evidence to account for the lapse in time between the protected activity and the adverse action. As such, I find that the claimant has failed to proffer sufficient evidence to raise a reasonable inference that the protected activity was the likely reason for the adverse employment action. Thus, the claimant has failed to establish his prima facie case of discrimination and dismissal of his action is proper at this time.

   IT IS HEREBY ORDERED that the complaint of Abbas Honardoost is DISMISSED.

       ROBERT J. LESNICK
       Administrative Law Judge

RJL/JBM

NOTICE: This Recommended Order of Dismissal will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Order of Dismissal, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).