On May 15, 2002, the parties were convened by telephone conference, at which time they waived all statutory and regulatory deadlines and agreed to discovery deadlines and a new trial date. Complainant filed a second complaint with the federal OSHA on June 7, 2002, which was referred directly to OALJ for consolidation. The trial was re-scheduled and discovery was extended based on the additional complaint. The second complaint alleged "continued discrimination" for protected activity in that Complainant had been "relieved of duty" on May 25, 2002. That second complaint has been consolidated with this action.

Issues:

1. Was Complainant retaliated against for activity protected under the Solid Waste Disposal Act when he was:

a. Transferred out of the Mounted Police Unit ("MPU"), on or around August 30, 2000, with sub-issues related to working conditions after the transfer;
b. An Internal Affairs ("IAB") investigation was conducted on or around October 2000;
c. An Internal Affairs investigation was conducted on or around May 2002?

2. Does this Court have jurisdiction over the two complaints filed:

a. March 5, 2002 ("Complaint #1");
b. June 7, 2002 ("Complaint #2")?

3. Was the March 5, 2002 complaint timely filed?

4. If the March 5, 2002 complaint was not timely filed, was the second complaint filed on June 7, 2002 also untimely based on it being a continuation of rather than separate from the first complaint?

Summary of Findings and Conclusions

   Complainant did not timely file Complaint #1 but did timely file Complaint #2. I do not reach the issue of jurisdiction over Complaint #1 since it was untimely filed, but I find jurisdiction over Complaint #2. As Complaint #1 was untimely filed, I do not reach the issue of whether Complainant was retaliated against for protected activity prior to filing it (see, e.g., issue #1 above). I find that Complainant was not retaliated against for filing Complaint #2.

Background

   Gain, along with his complainant-workers, engaged in internal complaints about the primitive working conditions at the MPU. On May 18, 2000, he filed an anonymous complaint with the state of Nevada Occupational Safety and Health Enforcement Section ("OSHES") which agency investigated the MPU. After Gain involuntarily transferred out of the MPU in early September 2000, he filed a discrimination complaint with OSHES on September 8, 2000, for which they found "merit." CX-6, p.83.

   On October 10, 2000, Gain was removed from duty for a week, Tr.202, pending the outcome of an investigation into a charge of excessive force and failure to safeguard property based on a complaint from a person whom he had arrested. RX-30. The IAB, the unit assigned to investigate such complaints, sustained a charge of "neglect of duty." The sustained charge resulted in a verbal warning and in the "decision-making" portion (one of eight elements) of his performance evaluation being marked "unsatisfactory." RX-37. Although Gain could have been charged with burglary based on the arrestee's allegations, he was not. Tr.200; RX-27.

   Gain was investigated by the IAB five times in 2001 resulting in no adverse action against him. Tr.262-263. Gain received a merit increase and a letter of appreciation from his supervisor, Juanita Goode during that time frame and he was rated at the high end of competency in each of eight categories in his March 2002 performance evaluation. Tr.278.

   Gain filed his first federal environmental whistleblower complaint with the federal OSHA on March 5, 2002. On May 25, 2002, Gain was removed from duty pending an IAB investigation of excessive use of force. As a result of that investigation, Gain was suspended for 80 hours. Gain filed a second federal whistleblower complaint with the federal OSHA on June 7, 2002.

I. Timeliness

   Complainant's federal whistleblower complaint, filed on March 5, 2002, CX-1, alleges a number of adverse actions in reprisal for protected activity: (1) involuntary transfer from the Mounted Police Unit ("MPU") in September 2000 and written discipline on or about August 30, 2000, CX-4, p.40; (2) assignment to the "Plaza Desk" in the course of the transfer, having his days off changed temporarily, and having no choice over his permanent assignment; (3) relief of duty on October 10, 2000 pending burglary charges, with no disposition to date as to whether criminal charges would be filed; (4) sustained charge of neglect of duty issued on July 18, 2001, RX-30, p.104, oral form of discipline therefor, and June 1, 2001 performance rating issued July 11, 2001 pertaining to "Decision Making" checked "unsatisfactory." CX-11, p.223. The last alleged adverse action, the sustained charge of neglect of duty was issued on July 18, 2001, more than seven months before Complainant filed his March 5, 2002 whistleblower complaint with the federal OSHA. The SWD statute at 42 U.S.C. § 6971 (a) and (b) and the regulations at 29 C.F.R. § 24.3(b) require that a complaint be filed within thirty days of the alleged violation. That requirement has not been met and this complaint was not timely filed.

    The Secretary of Labor and the Courts have developed two exceptions to the 30-day filing requirement: equitable tolling and continuing violation.

   A. Equitable Tolling

   The 30-day time limit for filing a whistleblower complaint is in the nature of a statute of limitations and is subject to equitable tolling. Lastre v. Veterans Administration Lakeside Medical Center, 87-ERA-42 (Sec'y March 31, 1988); School District of Allentown v. Marshall. 657 F.2d 16, 19 (3rd Cir. 1981). The filing time may be tolled if: (1) the respondent misled the complainant concerning the cause of action, Hill v. U.S. Dep't of Labor, 65 F.3d 1331, 1335 (6th Cir. 1995); (2) an extraordinary circumstance prevented a timely assertion (such as a stroke), Central States, Southeast and Southwest Area Pension Fund v. Slotky, 956 F.2d 1369, 1376 (7th Cir. 1992); or (3) the complainant timely raised the precise statutory claim but in the wrong forum. Allentown at 20.

   Complainant is unable to show that he met any of the requirements for equitable tolling. No evidence was presented to show that Respondent concealed or misled Complainant in any way as to the adverse actions he alleges transpired. He was immediately aware that he had been retaliated against for whistleblowing activities related to his working conditions as he filed a complaint with the state OSHES agency on September 8, 2000, within nine days of the adverse action of written discipline on August 30, 2000. No evidence was presented to show that an extraordinary circumstance prevented a timely filing with the federal OSHA rather than the state OSHES, except for the Complainant's allegation that he called the federal OSHA and they told him that filing with the state agency was the same as filing with the federal one. Since Complainant appears to have alleged work-related health and safety complaints, it is not surprising that he would be so advised. For the same reason, Complainant's complaint to Nevada OSHES does not constitute the filing of an environmental whistleblower complaint in the wrong forum as his complaint in that forum related to occupational health and safety issues and not to community exposure or environmental concerns. Thus, Complainant did not raise the "precise statutory claim" in the wrong forum.

   In summary, Complainant did not meet any of the equitable tolling pre-requisites to toll the 30-day statute of limitations.

   B. Continuing Violation

   A complainant may preserve the timeliness of a claim under the "continuing violation" theory if there is a course of related discriminatory conduct and the complaint is filed within 30 days of the last discriminatory act. Egenrieder v. Metropolitan Edison Company, 86-ERA-23 (Sec'y April 20, 1987). However, the continuing violation theory cannot resurrect alleged past retaliatory or discriminatory acts, the effects of which persist. Delaware State College v. Ricks, 449 U.S. 250 (1980); United Airlines, Inc. v. Evans, 431 U.S. 553 (1977). According to the Supreme Court in Ricks, the critical question is whether any present violation exists. 449 U.S. at 258; Evans, 431 U.S. at 558.

   The alleged retaliatory acts – written discipline and involuntary transfer in August-September 2000; change in working conditions incident to the transfer in or around the same time; relief of duty pending investigation of burglary and neglect of duty charges in October 2000; sustained neglect of duty charge, oral discipline, and unsatisfactory element in evaluation in or around July 18, 2001 – occur, at the latest, more than seven months prior to Complainant's March 5, 2002 whistleblower complaint filing. None of these adverse actions, whether termed a "continuing violation" or not fall within 30 days of the filing of Complainant's whistleblower complaint. Complainant argues that since he was never told he would not be charged with a felony for the alleged burglary which was the basis for relief of duty on October 10, 2000 and the sustained charge of neglect of duty issued on July 18, 2001, this is a "continuing violation" and remains an adverse action to date. I do not find this argument persuasive. I am unclear about what kind of "disposition" Complainant expects to dispel his ongoing fear. Not being charged with something is not an adverse action. At most, if at all, it is the effect of a past retaliatory act. The putative negative effects of an allegedly retaliatory act such as removal from duty or a charge of neglect of duty do not trigger the 30-day statute of limitations. Only the allegedly retaliatory acts themselves trigger that period. Collins v. United Airlines, Inc., 514 F.2d 594 (9th Cir. 1975). Thus, Complainant "continuing violation" argument fails.

   I must conclude that Complainant's March 5, 2002 whistleblower complaint was not timely filed as neither the equitable tolling nor the continuing violation exceptions have been proved.

II. Jurisdiction

   As I have determined that Complaint #1 was not timely filed, I do not reach the issue of whether I have jurisdiction over it. However, Complainant's participation in the whistleblower process by filing Complaint #1 is per se protected activity as is his preparation to testify in the instant process before this Court. According to the SWD statute, 42 U.S.C. 6971(a):

No person shall fire, or in any other way discriminate against . . . any employee . . . by reason of the fact that such employee . . . has filed, instituted, or caused to be filed or instituted any proceeding under this chapter . . . or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.

Id.

   The implementing regulations for whistleblower proceedings further define protection for participation in the federal whistleblower complaint process:

(b) Any person is deemed to have violated the particular federal law and these regulations if such person intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee who has:

(1) Commenced, or caused to be commenced, or is about to commence or cause to be commenced a proceeding under one of the federal statutes listed in § 24.1 or a proceeding for the administration or enforcement of any requirement imposed under such Federal statute;
(2) Testified or is about to testify in any such proceeding; or
(3) Assisted or participated, or is about to assist or participate in any manner in such proceeding or in any other action to carry out the purposes of such Federal statute.

29 C.F.R. § 24.2(b) (1994). See also McCuistion v. Tennessee Valley Authority, 89-ERA-6, 5 (Sec'y Nov. 13, 1991); Bassett v. Niagara Mohawk Power Company, 86-ERA-2, 4 (Sec'y Sept. 28, 1993) (Complainant filed an earlier environmental whistleblower complaint and was protected for that activity).

   Complainant testified that he feared that McLaughlin was trying to give him HIV/AIDs or hepatitis. Complainant also testified that McLaughlin became violent in the ambulance going to the hospital, Tr.227-228, but IAB did not interview the officers in the ambulance. One of those officers, Jeremy Levy, testified at the hearing and confirmed Complainant's testimony. Tr.335.

   Complainant's 80 hour suspension was the result of the IAB investigation sustaining the charge of excessive use of force and a prior sustained charge of excessive use of force. Complainant testified that he did have a previous sustained charge of excessive use of force, Tr.257, and that he could have purged his file of it, but did not. Tr.231. The second sustained use of force is considered a major use of force, and results in a minimum suspension of 50 hours and a maximum of 160 hours. Tr.258-259. Gain was aware that his immediate supervisor, Lt. Kevin Keehan, was the person who suspended him, and was in a chain of command different from that of the IAB. Tr.255.

   Sgt. James Weiskopf's testimony

   Sgt. Weiskopf was called by Respondent.

   Deputy Chief Michael Ault's Testimony

   Deputy Chief Ault was called by Respondent.

   Ault was the Commander of the IAB from February to July 2002, after which a new department called the Office of Professional Standards was created which Ault headed, and a captain took charge of the IAB and reported directly to Ault. Ault was promoted to Deputy Chief on January 6, 2003. Tr.409. Ault testified that he did know that Complainant was under investigation for use of force, but did not participate or assist in the investigation, nor did he assign the investigators, who were automatically assigned according to the district in which the subject of investigation worked. Tr.455. Ault testified that he did not contact either of the investigators or ask them to make a finding against Gain. Tr.456. He also testified that he did not tell anyone in the IAB about Gain's whistleblower complaint against the department. Tr.455-456. Ault testified that the IAB does not take an officer off of duty or discipline him; that is up to his chain of command. Tr.449-450. IAB investigates all use of force complaints, as of March 2002. Tr.451.

   Testimony of Kerry Tritschler

   Officer Tritschler was called by Complainant.

   Officer Tritschler testified that he was an investigator at the IAB from December 2000 until November 2001. Tr.358. Sgt. Ross was his immediate supervisor. Tr.359-360. They worked together on investigations. They completed around 20 investigations without a problem. Tr.375-378. The next one concerned a charge of racial profiling. Tritschler believed the evidence showed that the charge should not be sustained. Tr.361. Ross changed Tritchler's finding and filed a report stating that the charge should be sustained. Tr.364-365. Subsequent to Tritchler's transfer out of the department, the case was re-opened and re-worked. Tr.366.

   Sgt. Ross did not testify at the hearing. Sgt. Ross retired right after Complainant's IAB investigation was completed. Mr. Snyder stated that he had tried to locate him but failed.

   Documentary Evidence

   The IAB issued a "Disposition Report" sustaining the charge of excessive use of force. RX-40, p.126. Complainant's supervisor, Sgt. Skehan issued the "Adjudication of Complaint" and "Notice of Suspension." RX-40, p.127-129. The Adjudication of Complaint contains a synopsis of the results of the IAB investigation:

The investigation into this matter and viewing of the videotape of the incident has determined that you were in the elevator with approximately 3-4 inmates. All of the inmates were handcuffed, and facing the rear wall of the elevator. The complainant was not only handcuffed with his hands behind his back, but was facing the wall and positioned between two other inmates which prevented him from completely turning around and facing off with you.

The prisoner turns his head and engages in words with you. Obviously angered at the prisoner's words, you reached between two inmates, grabbed the prisoner by the hair and pushed his face into the elevator wall. You immediately pulled him to the ground, causing his head to strike the door frame. This caused the prisoner to possibly fall unconscious, and receive a serious laceration to his head, which later required multiple stitches to close the wound. Upon the elevator doors opening, another officer noticed the

prisoner on the floor, with blood on the ground. This officer summoned the nurse, and it was determined the prisoner would be transported via ambulance to UMC due to the seriousness of his injuries.

The incident was captured on videotape. Although the videotape is not a continual play of events, but rather five second intervals, it is still clear that the prisoner's actions or lack thereof, did not warrant the excessive force used by you.

RX-40, p.128.

   B. Analysis

   Environmental whistleblower cases, in including the Solid Waste Disposal Act use the burdens of proof and production derived from Title VII cases, in particular, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See Clean Harbors Environmental Services, Inc. v. Herman, 146 F.3d 12 (1st Cir. 1998); Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987); Kenneway v. Matlack, Inc., 88-STA-20 (Sec'y June 15, 1989). To establish a prima facie case, complainant must show that 1) he engaged in protected activity under the SWD; 2) he was subject to an adverse employment action; and, 3) there was a causal link between his protected activity and the adverse action of his employer. See Moon, 836 F.2d at 229; See also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346 (9th Cir. 1984).

   Once the complainant has established a prima facie case, the burden of production shifts to the respondent which must articulate a legitimate, non-retaliatory reason for the adverse action. Gunther v. County of Washington, 623 F.2d 1303, 1314 (9th Cir. 1979), aff'd, 452 U.S. 161, 101 S.Ct. 352, 66 L.Ed.2d 313 (1981). The respondent need not prove the absence of retaliatory motive; it must simply produce evidence sufficient to dispel the inference of retaliation raised by the complainant. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978).

   Once the respondent meets its burden, the rebuttable presumption created by the complainant's prima facie showing "drops from the case." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, n.10, 101 S.Ct. 1089, 1095, n.10, 67 L.Ed.2d 207 (1981) and the issue of whether the complainant has made a prima facie case is no longer useful. "The [trier of fact] has before it all the evidence it needs to determine whether ‘the defendant intentionally discriminated against the plaintiff.'" USPS Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1089). Regardless of the form of the evidentiary analysis, the ultimate burden of persuasion that the respondent engaged in unlawful reprisal remains at all times with the complainant. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 at 1094, 67 L.Ed.2d 207 (1981).

   The Administrative Review Board (ARB) holds that a case fully tried on the merits does not require an analysis of whether the complainant presented a prima facie case and whether the respondent rebutted that showing. Adjiri v. Emory University, 97-ERA-36 (ARB July 14, 1998); Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), slip op. at 11 n.9, aff'd sub nom. Carroll v. U.S. Dep't of Labor, 78 F.3d 352, 356 (8th Cir. 1996):

Once Respondent produces evidence in an attempt to show that Complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to answer the question whether the complainant presented a prima facie case. Instead the relevant inquiry is whether Complainant prevailed by a preponderance of the evidence on the ultimate question of liability.

Id. at 6 (citations omitted).

   Accordingly, the Complainant must prove, by the preponderant evidence, that his removal from duty and ultimate 80 hour suspension was the result of retaliation for his protected activity. The Complainant has failed to carry his burden. Although he is able to show that he engaged in protected activity, and that Respondent had at least constructive notice of such activity, he is unable to show that the removal from duty and suspension was more likely than not based on his protected activity.

   Complainant filed his first whistleblower complaint on March 25, 2002. On April 15, 2002, the Department of Labor (DOL) sent a Notice of Complaint to Respondent. I issued and served a Notice of Hearing in this case on May 13, 2002. Thus, Respondent was on notice of Complainant's SWD complaint shortly before he was removed from duty. Even though I have found that this initial complaint was not timely filed, the act of filing a whistleblower complaint is protected activity in itself. Complainants would not come forward to file legitimate complaints if they feared that reprisal might be the result. Thus, filing a complaint, whether meritorious or not, whether timely or not, is in itself protected activity.

   However, Complainant has not shown that Respondent's legitimate, non-retaliatory reason for his removal from duty and suspension is a pretext for retaliation. It is undisputed that Complainant caused a prisoner in his custody to suffer a laceration to his head which resulted in possible unconsciousness, the need to be sent by ambulance to the emergency room, and stitches to the laceration. Mr. Snyder testified and I find credible that when a police officer engages in any activity, whether justified or not, that may involve excessive use of force, he or she is removed from duty pending the investigation of such act. Complainant has not shown that this policy or procedure was a pretext for retaliation against him. The evidence he provides for pretext is that he was not removed from duty when accused in a prior incident. It is unclear why he was not removed from duty for the prior incident, but that simple inconsistency does not persuade me that such removal was not justified in this specific instance. Mr. Snyder stated officers in such cases were removed from duty for committing possible felonies, whether violent or not, due to liability problems. This explanation makes sense. I do not find it pretextual.

   Complainant argues that the IAB investigation was rigged to make a "sustained" finding, and thus the suspension that followed was the product of retaliation for his protected activity. Complainant presents evidence to support this thesis: (1) Commander Ault, who had been the subject of Complainant's first whistleblower complaint, was in charge of the IAB at the time of the investigation, and his subordinates would have to follow his orders; (2) Sgt. Ross, who was in charge of the final report and sustained the finding that Complainant used excessive force, was corrupt in that he had changed the findings in a report that Officer Tritschler had authored and since Respondent did not produce Ross as a witness, the Court should make an adverse inference against him; (3) The video did not show Complainant doing anything wrong; (4) Complainant suffered a chipped bone and torn ligament in his left thumb which shows that the prisoner resisted and required control; (5) the prisoner was a "spitter" and was attempting to infect Complainant with HIV/AIDs or hepatitis; (6) IAB and Weiskopt's claim that there were 5 witnesses watching the incident in real time in the monitor room cannot be true as the monitor room was too small to hold 5 people; (7) Weiskopf did not interview the two officers who were in the ambulance after the incident who would have told him that the prisoner was very violent in the ambulance; (8) the summary of the IAB finding states that 3-4 prisoners were in the elevator, when there were actually 5; (8) Complainant was scheduled for a second interview with IAB to clarify inconsistencies which had the potential for termination for untruthfulness, which was cancelled.

   It is not the ALJ's role to put herself in place of the employer and decide what she would do given the facts put before her. An employer's decision to discharge or discipline is not unlawful, even if based on mistaken conclusions about the facts; it is only unlawful if motivated by retaliation for protected activity. Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991). An employer has the right

to interpret its rules as it chooses, and to make determinations as it sees fit under those rules . . . . Nor does the statute [Title VII] require the employer to have good cause for its decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or no reason at all, so long as its action is not a discriminatory [or retaliatory] reason.

Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984) (citations omitted).

Conclusion

   Complainant's Complaint #1 was untimely filed. Because of its untimeliness, I do not reach the issue of whether I have jurisdiction over Complaint #1. Complaint #2 was timely filed, and I have determined that I have jurisdiction over it. However, because Complainant did not show by the preponderant evidence that the removal from duty and suspension which resulted from the IAB investigation of May 2002 was the product of illegal reprisal for protected activity, I find that Complainant was not retaliated against.

   Based upon the foregoing Findings of Fact, Conclusions of Law, and upon the entire record, I recommend the following Order:

1. Complainant shall take nothing.

       ANNE BEYTIN TORKINGTON
       Administrative Law Judge

San Francisco, California

NOTICE: This Recommended Decision and Order 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, NW, 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 Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.7(d) and 24.8.