10 DEC 1986
CASE NO. 86-SWD-2

IN THE MATTER OF

GUY HELMSTETTER,
    COMPLAINANT

    v.

PACIFIC GAS & ELECTRIC CO.
    RESPONDENT

    This is a claim filed under the employee protection provisions of the Solid Waste Disposal Act; (hereinafter "the Act"). 42 S.C. § 6971 et seq. After appearing on October 29, 1986, the date originally set for the hearing, the parties agreed to submit briefs on the limited issue of timeliness in the filing of the claim. Under the Act, a party has thirty days after the occurrence of an alleged violation to file a complaint with the Secretary of Labor. 42 U.S.C. § 6971(b). The complaint in this case was filed June 16, 1986; therefore, the issue is whether respondent engaged in allegedly discriminatory conduct within the thirty days prior to that date.

    After having carefully considered the arguments presented, I find that this claim was not timely filed. Complainant has argued that respondent's allegedly discriminatory actions constituted a continuing violation. Basically stated, a continuing violation is established if an independent discriminatory act occurred within the statutory period and if an employee could not have reasonably known that the first discriminatory act was independently actionable. See, e.g., Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1561 (5th Cir. 1985).

    Complainant asserts that the first discriminatory conduct occurred in April of 1985 when he was informed that the position for which he was being considered would not be given to him

automatically, but that he would have to compete with other PGE personnel for it. Complainant had been working in this position on a temporary basis. Complainant apparently "perceived this action...as discriminatory," (Complainant's brief, at 4). He thus informed his supervisor that he would not remain in the position on a temporary basis beyond June 1, 1985, the date originally set for filling the permanent position. His supervisor informed him that this action would remove him from consideration of the permanent position. (Id. at 5). This position was permanently filled with another employee in July of 1985. (Respondent's brief, at 3). In August of 1985, complainant accepted another position with the understanding that he would be placed in a position comparable to the one for which he was not chosen. Allegedly, complainant was denied the position because of his strong environmental stance.

    From complainant's own admissions, he regarded the alleged failure to promote in 1985 as discriminatory. He agruably knew that this conduct was "independently actionable," thus the second part of the test for a continuing violation has not been met. However, even if complainant was not fully aware that respondent's conduct in 1985 was actionable, it is more important for this analysis that the first part of the test has not been established. Specifically, the evidence does not show that there has been an independent discriminatory act within the statutory period, (i.e., thirty days before the filing of the complaint).

    Complainant has offered two possible grounds for establishing actionable conduct within the statutory period, both of which I reject. First, complainant asserts that respondent has continued to fail to promote him; however, there is no evidence that, after 1985, there have been promotional opportunities which were denied. It is not sufficient to rely on the 1985 incident because that occurred beyond the statutory period. Complainant has not established that within the thirty day period he was denied a promotional opportunity in contravention of the Act.

    The second alleged independent discriminatory act occurred on May 20, 1986; respondent placed a disciplinary letter in complainant's personnel file. (See respondent's brief; Attachment M). This letter is relates to a problem which arose between complainant and a vendor.¹ It appears that respondent wrote this letter for legitimate employment purposes. The mere writing of this letter is not independent actionable conduct. There is no

showing that complainant has suffered a harm due to this letter, nor that this letter was the result of discrimination by respondent against complainant. An employer does not lose its right to supervise, &nd if necessary, criticize an employee's conduct notwithstanding the fact that the employee has alleged discrimination. Furthermore, regarding the disciplinary letter, respondent has stipulated that in the event its motion to dismiss was granted, it would remove the letter from complainant's file. (TR 7). This eliminates the possibility that complainant will be held back by this disciplinary letter in the future as his career advances with respondent.²

    Complainant is not entitled to attorney's fees or costs under the Act because respondent has not been ordered to abate any alleged violation under the Act. See 42 U.S.C. § 6971(c).

    Lastly, because the claim is time barred, I have not attempted to determine whether the failure to promote in 1985 constituted discrimination under the Act. I am bound to follow the law as set out in the Act and cases. If the law regarding the relatively brief time limitations is unjust, it is for an appellate court or Congress to remedy. Toxic pollution is an important issue and it does appear to be the intention of Congress to encourage employee dilligence and whistleblowing; however, I am not free to disregard the stated time periods. I note further that complainant has not raised the doctrine of equitable tolling, nor do the facts establish that the doctrine should apply. See generally, Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980); School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 18 (3d Cir. 1951); Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978).

¹ Apparently a vendor expressed dissatisfaction about the complainant. Respondent apologized to the vendor and warned complainant to more closely monitor his conduct. Complainant felt he had been unfairly accused and he wrote to the vendor asking for a retraction. (Respondent's brief, Attachment L). In response respondent wrote a disciplinary letter, stating that the behavior of a PGE employee must conform to certain standards when that employee is performing duties with PGE. (Respondent's brief, Attachment M).

² The allegation of failure to promote to a permanent position is the gravamen of the complaint, although complainant alleges other conduct which was allegedly "discriminatory." (See Complainant's brief, at 9). Even though the other complained of acts occurred before the statutory period, and would thus be time barred, I feel compelled to comment about some of the other allegations. Complainant asserted that the rejection of his suggestions to the "Ideas in Action" program was discriminatory because he was thus "denied" the monetary bonus employees receive when their suggestions are accepted. There are,no facts showing that complainant's suggestions were intentionally rejected because his supervisors were discriminating against him. Instead, it appears that his suggestions were rejected in the normal course of things; it is inherent in a "suggestion program" that some ideas will be rejected. Thus, even if the complained of Act were not time-barred, the rejection of the suggestions without a showing of discrimination, would not constitute prohibited conduct.