Complainant's counsel objected to that procedure as well as the Limitation the ALJ placed on the scope of the witnesses' testimony. Complainant sought clarification of the Under Secretary's remand order, which was denied on July 18, 1986. Complainant's counsel refused to participate in depositions and the ALJ returned the case to the Under Secretary without any additions to the record on the merits on July 13, 1986. Because I find that Mrs. English's complaint was untimely filed under the Act, 42 U.S.C. § 5851(b)(1), the complaint in this case will be dismissed. 29 C.F.R. § 24.6(b)(4).

    Vera English was a laboratory technician in the Chemet Lab of G.E.'s Wilmington facility in March 1984 and had worked in that laboratory for a number of years. Her duties involved weighing and analyzing samples of nuclear fuel, consisting of uranium powder, to determine whether the proper concentration of uranium had been achieved in the manufacturing process. The nuclear fuel is manufactured into fuel rods used in nuclear reactors in electric power plants.

    Mrs. English had made a number of complaints to the Nuclear Regulatory Commission in the years prior to March 1984 about sloppy handling of uranium powder in the Chemet Lab, failure to clean up spills of radioactive Powder and solutions, inadequate process controls and radiation safety procedures, and defective equipment. On March 15, 1984 Mr. L.A. Sheely, Manager of Fuel Quality, took disciplinary action against Mrs. English based on five violations of "work and conduct standards" which he stated as,

1) the unauthorized removal of the personal survey instrument from the entrance to the laboratory, 2) the deliberate contamination of a table, 3) failure to clean-up the contamination knowing it existed, 4) the continued distraction of other laboratory employees and 5) disruption of normal laboratory activities.

Mr. Sheely imposed a penalty of five days off without pay, which he waived, and a period of 12 months probation during which commission of any offense serious enough to warrant discipline would result in discharge. In addition, Mrs. English was removed from her assignment in the Chemet Lab and was placed on indefinite temporary assignment to other work.

    Mrs. English appealed this disciplinary action to Mr.

James A. Long, General Manager of the Wilmington Manufacturing Department of General Electric. On May 15, 1984 Mr. Long upheld Mr. Sheely's finding that Mrs. English had "knowingly and intentionally failed to clean up (a) spill of radioactive material." Mr. Long found this to be "a very serious and significant violation of the Wilmington plant's health and safety standards and procedures." He ordered that Mrs. English would not be allowed to work in any "controlled access" area (areas where nuclear fuels are handled and special precautions are taken to contain radioactive contamination) or in any position with access to nuclear fuel. Her probationary period was reduced from 12 to six months, and the period of her temporary assignment was changed from indefinite to 90 days, with no reduction in pay. During the 90 day period G.E. would search for other work at the Wilmington facility for which Mrs. English was qualified. But, Mrs. English was told explicitly in writing by Mr. Long "If you have not secured permanent placement by July 30, 1984, you will be considered as involuntarily placed on lack of suitable work", in other words, discharged. Mrs. English was assigned to work in the Central Stores warehouse, but another suitable position did not become available and Mrs. English was discharged on July 30, 1984. Mrs. English filed a complaint with the Department of Labor on August 24, 1984.

    The ERA requires that complaints of retaliation for protected activities must be filed "within thirty days after such violation occurs". 42 U.S.C. § 5851(b)(1). Nevertheless, the ALJ denied G.E.'s motion to dismiss for untimeliness and reiterated that denial in his recommended decision. (D. and O. at 12.) He held that two Supreme Court decisions, interpreting the charge filing time limits of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e) (1982), Delaware State College v. Ricks, 449 U.S. 250 (1980), and the application of a one year statute of limitations to actions under 42 U.S.C. § 1983 (1982), Chardon v. Fernandez, 454 U.S. 6 (1981), were distinguishable for several reasons, including the fact that Mrs. English "established a continuing violation."

    In Ricks, a professor was notified that he had been denied tenure and would be given a one year terminal contract on June 26, 1974. The Supreme Court held that the charge filing period under Title VII began to run on that date, not June 30,

1975 the final date of Ricks' terminal contract. In Chardon v. Fernandez, several administrators in the Puerto Rican Department of Education were notifed that their appointments would terminate at specified times in the future. The Supreme Court held that the one year statute of limitations applicable to actions under 42 U.S.C. § 1983 began to run when they received notice of their terminations, not when they were actually terminated.

    The fact that Chardon and Ricks involved racial discrimination in the denial of tenure, one distinction relied on by the ALJ, is little, if any, distinction from this case for timeliness purposes. The Fourth Circuit has applied the principle set forth in Chardon and Ricks to an age discrimination case in the commercial field, Price v. Litton Business Systems, Inc., 694 F.2d 963 (1982) and I see no reason not to apply the same principle to discrimination for whistleblowing activities in the industrial field. I rule that the ALJ was wrong when he held that, under Title VII, "the fact of termination was not in itself an illegal act", whereas here the statute specifies that discharge for whistleblowing is illegal. Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), states explicitly "It shall be an unlawful employment practice for an employer --

(1) . . . to discharge any individual . . . because of such person's race . . . "

What the Supreme Court held in Chardon and Ricks was not that termination on account of race is not an illegal act, but rather that the timeliness of a charge must be measured from the date of the "unlawful employment practice". Quoting with approval from Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979) the Court said "[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." (emphasis by the Supreme Court). 449 U.S. at 258.

    Similarly here, the focus must be on when the "violation" took place, not on when its effects were felt. The alleged violation here was the decision to place Mrs. English on 90 day temporary assignment. If a suitable position did not become available, it was clear that Mrs. English would be discharged. As in Ricks, the discharge here was the "delayed, but inevitable, consequence", 449 U.S. at 257-258, of the 90 day temporary assignment. Mr. Long said so explicitly in his May 15, 1984 ruling on Mrs. English's appeal.

    Moreover, the fact that G.E. was seeking another position for Mrs. English during the 90 day period and there was a

possibility that she could remain with the company does not change the result. In Price v. Litton Business Systems, Inc., supra, plaintiff was told, after his removal as branch manager, that other positions with Litton would be sought for him. He was told his supervisors wanted him to stay with the company and that they would make some specific offers of employment in the near future. He was in fact offered other, lower, positions. The Fourth Circuit held that the time for filing his complaint under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1982) ran from the date he was told he would be removed as branch manager, not when his employment finally terminated. 694 F.2d 963, 965. "An employee's hope for rehire, transfer, promotion, or a continuing employment relationship ... cannot toll the statute ... " id. at 966.

    The ALJ thought "Mrs. English has established a continuing violation" (D. and O. at 12) but did not specify what actions by G.E. constituted that continuing violation. The Supreme Court scrutinized plaintiff's claim in Ricks of a continuing violation, but held that "mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." 449 U.S. at 257. Although Mrs. English did allege and attempt to prove that G.E. engaged in other acts of discrimination during the 90 day temporary assignment period, that is not sufficient to state a claim of continuing violation with respect to her discharge. For example, she alleged that she was put under surveillance by her new supervisor in Central Stores, and that she was harassed by G.E by having someone from management board a flight she took to Washington to talk to the NRC, and by ordering her to go home to put on her safety shoes on her last day of work. In Ricks, plaintiff also alleged that "a variety of unusual incidents occurred during [his terminal year]", 449 U.S. at 257, n.8, but that was not sufficient to establish a continuing violation. The Supreme Court said "[i]n order for the limitations periods to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure ... [But] ... the only alleged discrimination occurred - and the filing limitations periods therefore commenced at the time the tenure decision was made and communicated to Ricks." 449 U.S. at 258.

    Here, Mrs. English has not shown that she was treated any differently from any other employee on temporary assignment

subject to being placed on "lack of suitable work" status if a suitable permanent assignment cannot be found. The only violation, if any, occurred when she was put on temporary assignment on May 15, 1984 and the 30 day statutory filing period commenced on that date. Her August 24, 1984 complaint was more than two months late.

    Cases decided by the lower courts both before and after the Supreme Court's decisions in Chardon and Ricks show that the type of allegations made by Mrs. English here, even if proven, would not support a "continuing violation" theory that her complaint was timely filed. The courts have generally distinguished a completed act as a demotion, Mader v. Control Date Corporation, 19 F.E.P. 1192 (D. Md. 1978) or termination, Welty v. S.F. & G., Inc., 37 F.E.P. 929 (N.D. Ala. 1985) from employment policies and practices which are repeatedly implemented during the filing period although they may have been first established prior to the filing period, Davis v. Los Angeles County, 566 F.2d 1334 (9th Cir. 1977), vacated on other grounds, 456 U.S. 63 91982). Thus, for example, in Patterson v. American Tabacco, the Fourth Circuit distinguished Evans v. United Airlines, 431 U.S. 553, pointing out that in Patterson "the violations charged and found by the district court were continuing in the very sense not present in Evans. Here the promotional policies adopted in 1968 were alleged ... and found ... to involve a continuing pattern of practice of discrimination ... [C]laims related to these violations are not barred by the failure to have challenged at its inception the policy which gave continuing rise to them." 634 F.2d 744, 751 (emphasis added). Compare Davis v. Los Angeles County, (use of a height requirement is a continuing violation); Brewster v. Barnes, 788 F.2d 985 (4th Cir. 1986) (failure to raise salary is a continuing violation); Gonzalez v. Firestone Tire and Rubber Co., 610 F.2d 241 (5th Cir. 1980) (discriminatory test is a continuing violation), with Prophet v. Armco Steel, Inc., 575 F.2d 579 (5th Cir. 1978) (discharge is not a continuing violation); Daughtry v. King's Department Stores, Inc., 608 F.2d 906 (1st Cir. 1979) (layoff not a continuing violation); Stoller v. Marsh, 682 F.2d 97L (D.C. Cir. 1982), cert. denied, 460 U.S. 1037 (1983) (a series of acts - reassignment, denial of requested transfer, poor performance evaluation - not a continuing violation even if all allegedly motivated by discrimination).

    In Lippert v. General Electric Co., 27 F.E.P. 1427 (W.D. Ky. 1982) an employee was notified in February 1979 that he would be placed or, "lack of work status", the same status Mrs. English

was placed on, beginning in March 1979. This was extended until June 1979 and the employee was then placed on "protective service status" (benefits without pay, possibility of rehire) for one year. He alleged age discrimination. The court held that the discriminatory act occurred in February of 1979 and that the complaint, filed in January 1981, was time barred by the 180 day filing limit. 27 FEP at 1430. I think the court's observation in Corbin v. Pan American World Airways, 432 F.Supp. 939 (N.D. Cal. 1977) is applicable here to Mrs. English's allegations as well as the ALJ's finding of a continuing violation. The court said "... a plaintiff may not circumvent the limitations period by labeling an act a 'continuing' violation ... Completed acts such as termination through discharge or resignation, ... a job transfer ... or discontinuance of a particular job assignment are not acts of a 'continuing' nature." 432 F.Supp at 944.

    Accordingly, the complaint in this case is DISMISSED. In view of my disposition of this case, complainant's request for an award of attorney's fees and costs and expenses is denied, and all other pending motions, suggestions, requests and similar pleadings and letters of both parties are denied as moot.

      DENNIS E. WHITFIELD
       Deputy Secretary of Labor

Washington, D.C.