DATE: April 5, 1989
CASE NO. 85-ERA-2

In the Matter of

VERA M. ENGLISH,
    Complainant,

    v.

GENERAL ELECTRIC COMPANY,
    Respondent.

Appearances:

MOZART C. RATNER, Esq.
    Mozart C. Ratner, Esq.
    1525 Wisconsin Ave., N.W.
    Washington, D.C. 20015

ARTHUR M. SCHILLER, Esq.
    21 DuPont Circle, N.W.
    Suite 401
    Washington, D.C. 20036

SCOTT A. KLION, Esq.
    General Electric Co.
    175 Curtner Ave., M/C 822
    San Jose, CA 95125

WILLIAM W. STURGES, Esq.
    Weinstein, Sturges, Odom
    Groves, Bigger, Jonas & Campbell, P.A.
    810 Baxter St., Cul-De-Sac
    Charlotte, N.C. 28202-2773

PETER NASH, Esq.
    Ogletree, Seakins, Nash, Smoak & Stewart
    1200 New Hampshire Ave., N.W.
    Washington, D.C. 20036

Before: ROBERT J. BRISSENDEN
    Administrative Law Judge

    The United States Court of Appeals for the Fourth Circuit remanded this case for consideration of Complainant's "separate claim of discrimination by retaliatory harassment." English v. Whitfield, No. 87-3520, slip op. at 18 (October 6, 1988). The Complainant's other, independent claim of retaliatory discharge was time barred by the Court of Appeals. Id.

    The Secretary remanded the matter to this administrative law judge for further proceedings consistent with the order of the Court of Appeals.

    The issue to be decided is whether Complainant has established a "continuing violation" of the Employee Protection Section (EPS) of the Energy Reorganization Act of 1474, as amended, 42 U.S.C.

    If continuing violations, i.e. a series of related acts of workplace harassment are established, it will be necessary to determine whether any such violations, if connected, occurred within a 30 day period prior to the August 24, 1984.

    The Fourth Circuit's view of the violations to review, in the instant case, are those around the time that Mrs. English was placed on "probationary assignment". The first of such acts, that I consider as proven, was Mrs. English' banishment from the General Electric Company's Wilmington, North Carolina Chemet laboratory (hereinafter Chemet Lab). This was done on March 15, 1984 and the transfer was "indefinite". The Complainant adequately proved to my satisfaction that such transfer was an act of workplace harassment.

The transfer out of the lab continued during her probationary period and the work assigned in Building J was definitely of a lower order of skill and prestige. Under such circumstances, I consider that such transfer, though not involving a reduction in salary, neverthless created a "hostile work environment". (See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 64 - 67 (1986).) From the testimony of Thurston C. Davis, of General Electric's Personnel Relations department, it would appear that Complainant was doing warehouse work in the Building J area on or about July 27, 1984. Even if each and every day of work in or about Building J was considered a continuation of a hostile work environment, the Complainant encounters the same problem as she did in attempting to tie in the various acts complained of which occurred subsequent to the communication of May 15, 1984 leading up to the actual layoff. In the matter of the banishment and reassignment to Building J work, Mrs. English was advised on or about March 15, 1984 that such banishment was "indefinite". At that time the act of banishment went into effect and under the reasoning of the 4th Circuit Court of Appeals this was a discrete violation which had effects that carried over on a "continuing basis" The time to file was within one month of such clear communication. That the employer changed the "indefinite" job assignment to one with a termination date of July 30, 1984, may have been another discriminatory act in the chain of continuing violations, but if such was a separate act, then the filing was again too late since May 15th started the effect of ending the job. The communication of May 15, 1984 indicated that there would be a layoff thus setting a termination of all work, including the Building J work. Thus, even though the May 15th letter created a separate act which would extend the 30 day statute of limitations, Mrs. English did not file her complaint until August 24, 1984.

    Other acts which could be considered separate violations, yet connected with continued work-place harassment, were a discussion that Complainant had around July 27, 1984 with Thurston C. Davis, Personnel Relations department counsellor for employees. Though Complainant apparently took offense to the mode that was used to advise of the unlikelihood of finding suitable alternative employment, I found Mr. Davis' testimony to be credible in that he carried out an unpleasant duty with courtesy. I was convinced that he did nothing to demean. He noticed a safety violation with reference to Mrs. English's open-toed shoes and, reported this to her immediate supervisor. Since Mrs. English was to continue working that day, she was told to go home to secure closed-toe leather shoes. The safety rule involved appeared proper for work in a

warehouse and the witness was credible in this respect.

    I found no other acts of a discriminatory nature within the thirty day period prior to the filing date of the Complaint. None were alleged and the evidence does not indicate any.

    To sum up, I find that though certain retaliatory acts of workplace harassment occurred, which were separate and distinct from the layoff but part of a continuing pattern, nevertheless failed to come in within the impossibly short statute of limitations and thereby a valid claim of discrimination was aborted.

    The claim of Vera M. English, based on a continuing series of workplace harassing acts, should be denied.

       ROBERT BRISSENDEN

       Administrative Law Judge

Dated: April 5, 1989
San Francisco, California

RJB/er