Yearly evaluations that are sufficiently high lead to monetary performance
awards that usually are distributed in December or January.
Pantanizopoulos recalls discussing his performance with his immediate
supervisor, Daryl Armentrout, for the first, third, and fourth quarters of FY 1994. Dep. at
14-15. On the basis of the supervisor's evaluation for those quarters, Pantanizopoulos'
performance rating averaged more than 3.0 (on a numerical scale in which 4.0 was the highest
rating possible). Id .; Dep. Ex. 2. At the time of his retirement in October 1994,
Pantanizopoulos had not received written copies of the performance evaluations for the third
and fourth quarters of FY 1994.
Armentrout sent the quarterly performance ratings of Pantanizopoulos
to his superior, David Kehoe, for approval. Kehoe was the QA manager at the Watts Bar
nuclear plant. Kehoe signed a FY 1994 yearly performance appraisal of Pantanizopoulos on
July 7, 1995, in which he rated Pantanizopoulos' performance numerically as 2.1 for the year.
Dep. Ex. 3. Kehoe did not obtain Pantanizopoulos' signature on the evaluation, but rather
noted that Pantanizopoulos was "not available." Id . Kehoe did not
send a copy of the evaluation to Pantanizopoulos at that time.
During a March 1996 get together with other Watts Bar retirees,
Pantanizopoulos realized that he had not received either a performance award for FY 1994 or
a copy of some of the quarterly evaluations and the final evaluation for that year. Complaint
at 1. Pantanizopoulos asked TVA to provide copies of the evaluations to him. Id .
In response, he received on March 26, 1996 a copy of the last two quarterly evaluations and
his final FY 1994 performance evaluation. Id.
Although the average of Armentrout's numerical ratings would have
qualified Pantanizopoulos to receive a monetary performance award, the numerical rating
given by Kehoe did not. Complaint at 2. Pantanizopoulos filed this complaint on April 4,
1996, alleging that TVA violated the ERA when it lowered the grade on his yearly
performance evaluation. He seeks payment of a performance award of approximately
$4,000.00.
TVA moved for summary decision on the ground that the complaint was
not timely and, in the alternative, that Pantanizopoulos cannot establish a prima
facie violation of the employee protection provision. The ALJ granted the motion on
both grounds.
DISCUSSION
Timeliness
The ERA prohibits an employer from discriminating against, or
discharging, any employee because the employee has engaged in certain protected activities.
42 U.S.C. §5851(a)(1). A person who believes that he has been discriminated against
in violation of that prohibition "may, within 180 days after such violation occurs, file
. . . a complaint with the Secretary of Labor. . . ." 42 U.S.C. §5851(b)(1).
The ALJ found that the complaint was not filed timely:
[Pantanizopoulos] should have been aware as early as December 1994 that he
had not received a performance award and that some wrongful act may have
occurred. * * * [Pantanizopoulos] should have been expecting a performance
award in December 1994 or January 1995. At this point he would have had
constructive knowledge of the alleged discrimination when he did not receive
a performance award for FY 94. Complainant should have known that
something was amiss even prior to creation of the evaluation report in July
1995. Complainant also could have obtained a copy of the report in July.
However, taking the facts in the light most favorable to Complainant, the
limitations period begins running on July 7, 1995, when the evaluation report
was dated and the ratings were officially changed from the ratings given by
[Pantanizopoulos's] immediate supervisor. This date is almost nine months
before complainant filed his claim on April 4, 1996 and not within the 180 days
mandated by the Act.
We disagree with the ALJ's timeliness analysis. The Secretary long has
held that the ERA's limitation period begins running on the date that the employee is informed
of the challenged employment decision. Rainey v. Wayne State Univ. , Case No.
89-ERA-8, Sec. Final Dec. and Ord, May 9, 1991, slip op. at 2 and Ray v. Tennessee
Valley Authority , Case No. 88-ERA-14, Sec. Final Dec. and Ord, Jan. 25, 1991, slip
op. at 7. As the Seventh Circuit explained in a case under the Age Discrimination in
Employment Act, Cada v. Baxter Healthcare Corp. , 920 F.2d 446, 450 (7th Cir.
1990), cert. denied , 501 U.S. 1261 (1991):
Accrual [of a claim] is the date on which the statute of limitations begins
to run. It is not the date on which the wrong that injures the plaintiff
occurs, but the date -- often the same, but sometimes later -- on which
the plaintiff discovers that he has been injured. The rule that postpones
the beginning of the limitations period from the date when the plaintiff
is wronged to the date when he discovers he has been injured is the
"discovery rule" of federal common law, which is read into
statutes of limitations in federal-question cases (even when those statutes
of limitations are borrowed from state law) in the absence of a contrary
directive from Congress. [Citations omitted].
The Secretary has held that the ERA limitations period begins to run
"when the facts which would support the discrimination complaint were apparent or
should have been apparent to a person with a reasonably prudent regard for his rights [and]
similarly situated to Complainant." McGough v. United States Navy , Case
No. 86-ERA-18, Sec. Rem. Dec. and Ord., June 30, 1988, slip op. at 10. The ALJ faulted
Pantanizopoulos for not realizing in December 1994 or January 1995 that he had not received
a monetary performance award and promptly discovering why. At that time, TVA had not
even prepared his FY 1994 performance evaluation, and therefore even a very diligent person
could not have known about the injury at issue.
The ALJ next seized upon the date the performance evaluation was
signed, July 7, 1995, as the date when Pantanizopoulos should have known about the alleged
violation, the lowering of the numerical rating on his yearly evaluation. However, the record
shows indisputably that TVA did not provide the evaluation to Pantanizopoulos until he
inquired about it in 1996. There is no reason to fault Pantanizopoulos for not divining that
TVA had prepared a FY 1994 evaluation some nine months after the end of that fiscal year.
Pantaniozpolous could have reasonably concluded that the delay in receiving his evalulation
and any bonus to which he was entitled was due to a processing error or oversight, particularly
in light of his retirement. The delay in itself was insufficient to put him on notice that the
award was wrongly being denied him.
Applying the discovery rule to the facts of this case,
Pantanizopoulos's claim accrued on March 26, 1996, when he received a copy of the FY 1994
performance appraisal and discovered that he had been injured. Since Pantanizopoulos filed
this complaint only nine days later, on April 4, 1996, we find that the complaint was timely
filed.
The Merits
The ALJ also granted summary decision to TVA on the merits, finding
that Pantanizopoulos has not provided any evidence that he engaged in an activity protected
under the ERA or that TVA violated the act in denying him a performance award. R. D. and
O. at 4-5. The ALJ correctly stated the standard for granting summary decision and noted that
Pantanizopoulos did not provide any evidence to counter the affidavit and evidence submitted
by TVA. The ALJ noted that "Complainant acknowledged that he was unaware of any
concern he had raised which would cause his rating to be lowered." R. D. and O. at 2-3, citing Dep. 41-42. The ALJ held that:
Complainant has not provided any evidence that Respondent has violated the act
in denying him a performance award. He relies only on his sense that the
actions of Respondent are unfair in some way. Such a showing is not the
affirmative evidence necessary to defeat a motion for summary judgment.
We adopt the ALJ's discussion and findings on the merits. R. D. and
O. at 4-5. Accordingly, we DISMISS the complaint.
SO ORDERED.
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
[ENDNOTES]
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