A
hearing on this complaint was held on December 2, 1988. The ALJ
found that, assuming Complainant had engaged in a protected
activity, she failed to adduce either evidence showing any
adverse action by Respondent or evidence sufficient to support an
inference that the action complained of was caused by
Complainant's 1983 report. Accordingly, the ALJ concluded that
the record does not show any violation of the employee protection
provisions of the ERA, and recommended that the complaint be
dismissed. Although afforded the opportunity to do so, neither
party has filed a brief in response to the ALJ's R.D. and O.
The pertinent facts are fully set forth in the ALJ's
decision. Briefly, however, Complainant first alleges that
subsequent to her prior complaint, filed in 1986, she received
several inappropriate work assignments. Further, she alleges
that since 1986, and particularly, for 14 days during the period
from June 20, 1988, to July 14, 1988, personnel in the Hematology
section, under the charge of Dr. Goewert, improperly discarded
blood samples which were necessary for the proper execution of
her job. Complainant testified that the failure to follow
standard procedure to save the blood samples continuously caused
her additional work and stress. On July 14, 1988, Complainant
reported the blood sample problem to Dr. John R. Warren, Chief
of Respondent's Microbiology Laboratories, who notified and
instructed Dr. Goewert to investigate. Shortly thereafter,
Dr. Goewert allegedly reported to Complainant's immediate
supervisor that Complainant was "bothering" the laboratory staff.
Complainant contends that Dr. Goewert's portrayal of her behavior
was inaccurate and that his criticism was unfair and
inappropriate.
At the hearing before the ALJ, Respondent moved to limit the
testimony and evidence to issues which developed between July 12,
1988, and August 12, 1988 (the date the complaint was filed), on
the basis of the requirement at 29 C.F.R. § 24.3(b) (1989). The
ALJ granted the motion, noting, however, that Complainant would
be entitled to testify to background material.
I agree that the allegations presented in this complaint
must be limited to those surrounding the disposal of blood
samples, specifically to alleged acts occurring between July 12,
1988, and August 12, 1988. The employee protection provisions of
the ERA, as well as the regulations implementing those
provisions, explicitly provide that any complaint shall be filed
within 30 days after the occurrence of the alleged violation. 42
U.S.C. § 5851(b)(1); 29 C.F.R. § 24.3(b). This 30-day time limit
is in the nature of a statute of limitations, School District of
the City of Allentown v. Marshall , 657 F.2d 16, 19-21 (3d Cir.
1981), and Complainant, having filed a previous untimely claim,
was well aware of the time limitations involved.
Further, I have considered whether, under applicable law,
the alleged acts of harassment which occurred beyond the 30-day
filing period could reasonably constitute episodes in a
continuing violation, thereby removing the time bar as to those
allegations. I conclude that they cannot. See Helmstetter v.
Pacific Gas & Electric Co. , Case No. 86-SWD-2, Sec. Decision and
Order of Remand, June 15, 1989, and merits discussion, infra .
Nor does the record support equitable tolling of the statute of
limitations. See Doyle v. Alabama Power Co. , Case No. 87-ERA-43,
sec. Final Decision and Order, September 29, 1989, appeal
docketed, No. 89-7863 (11th Cir. Nov. 28, 1989). I note,
however, that it is not apparent that the ALJ in any way excluded
or limited evidence predating July 12, 1988, which is relevant to
Complainant's timely allegations and Respondent's motives. In
this regard, the ALJ's decision was also proper. See
Helmstetter , at 7, n.3.
Turning to the merits, of this case, the record has been
carefully reviewed and I further agree with the ALJ's conclusion
that Complainant has failed to establish retaliatory adverse
action in violation of the ERA. Generally, in order to establish
a prima facie case under employee protection provisions
implemented by 29 C.F.R. Part 24, the employee must show that she
engaged in protected activity of which the employer was aware and
that the employer took some adverse action against her. In
addition, she must present evidence sufficient to at least raise
an inference that the protected activity was the likely motive
for the adverse action. Dartey v. Zack Company, of Chicago , Case
No. 82-ERA-2, Sec. Decision and Final Order, April 25, 1983, slip
op. at 5-9. The record fully supports the ALJ's finding that
there is no evidence, other than Complainant's subjective
statements, that the disposal of blood samples and related
incidents in 1988 were in any way motivated or influenced by
Complainant's 1983 report. Moreover, the record shows that
during 1988, Complainant received from Respondent a performance
rating of "Outstanding" and a cash award, actions which evince
anything but a discriminatory motive toward Complainant.
Inasmuch as Complainant has failed to establish a requisite
element of the prima facie case, I accept the ALJ's
recommendation that the complaint be dismissed.3
Accordingly, the complaint is DENIED.
SO ORDERED.
ELIZABETH DOLE
Washington, D.C.
[ENDNOTES]
1 See 42 U.S.C. § 2014.
2 Lastre v.
Veterans Administration Lakeside Medical Center , Case No.
87-ERA-42, Sec. Final Decision and Order, March 31, 1988.
3
