Garn v. Benchmark Technologies, 88-ERA-21 (ALJ Aug. 15, 1988)

USDOL/OALJ Reporter
Garn v. Benchmark Technologies, 88-ERA-21 (ALJ Aug. 15, 1988)

U.S. Department of Labor
Office of Administrative Law Judges
525 Vine Street, Suite 900
Cincinnati, Ohio 45202

Date: AUG 15 1988
Case No. 88-ERA-21

In the matter of

KEVIN A. GARN
Complainant

BENCHMARK TECHNOLOGIES
Respondent

and

TOLEDO EDISON COMPANY
Respondent

ORDER

This case arises under the "whistleblower" provisions of the Energy Reorganization Act ("ERA") contained at 42 U.S.C. §5851. One of the respondents, Toledo Edison Company ("Toledo Edison.), has moved that the complaint of the complainant, Kevin Garn, be dismissed on the grounds that it is not timely.

42 U.S.C. §5851 provides ln pertinent part as follows:

(a) Discrimination against employee. No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or person acting pursuant to a request of the employee)

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this Act or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this Act or the Atomic Energy Act of 1954, as amended;

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(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 a proceeding or in any other canner in such a proceeding or in any other action to carry out the purposes of the Act or the Atomic Energy Act of 1954, as amended.

(b) Complaint, filing and notification. (1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, within thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor (hereinafter in this subsection referred to as the "Secretary") alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint and the Commission. . .

The pleadings and affidavits on file indicate that the complainant began work on April 11, 1987 as a data entry clerk for Benchmark Technologies, by whom he was employed at Toledo Edison's Davis-Besse nuclear power plant. He was discharged from that job on or about May 16, 1987. He filed his complaint under §5851 on February 22, 1988. Toledo Edison has moved that the complaint be dismissed on the grounds that it is untimely. It asserts that the doctrine of equitable tolling does not apply to extend the time during which the complainant could file his Complaint. The complainant asserts that his complaint is timely under the doctrine of equitable tolling.

The case of School District of the City of Allentown v. Marshall, 657 F.2d 16 (3rd. Cir. 1981) sets forth three types of situations in which equitable tolling may occur:

1. The defendant has actively misled the plaintiff respecting the cause of action,

2. The plaintiff has in some extraordinary way been prevented from asserting his rights, or

3. The plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.

Insofar as the complainant's complaint is based on his discharge from employment, the timeliness of that complaint

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will be considered under the doctrine of equitable tolling as outlined above. For purposes of ruling on the motion to dismiss, the complainant's statements of fact must be assumed to be true. Therefore the factual circumstances set out in this order are based upon the assertions of the complainant.

On or about May 5, 1987 the complainant and other similarly-situated workers in his unit were told by supervision to do a deliberately incompetent and untimely job of issuing procedure indexes in order to induce another unit in the plant, Document Control, to take the task back. The complainant protested this practice.

On or about May 13, 1987 tho complainant refused to enter a document entitled Revision 27 of site Administrative Procedure AD-1805 procedure "Preparation and Maintenance," into the testing and procedure index for the Davis-Besse plant. His refusal was based on the fact that the original of the document, which proposed certain changes which would restrict the requirement that the plant Quality Assurance Department have approval authority over procedures and procedure changes prior to the issuance and implementation in fact lacked a signature and hence the approval of the Quality Assurance Department. Revision 27 was a procedure change affecting quality at the plant. The complainant went to his supervisor who wrote an instruction on a copy of the document for the complainant to process the document without the concurrence. of the Quality Assurance Department. The complainant followed that directive at the time.

On Friday, May 15, 1987, as the complainant later learned, his employer was notified that he was to be terminated from his job on that date. No one at Davis Besse, including the complainant's immediate supervisor, notified him of that fact. However, when the complainant went to work on Saturday, May 16, 1987 and worked for three hours he was physically removed from the security area.

On or about Monday, May 18, 1987 the complainant went to the Davis-Besse plant and met with Sue Zunk, who was in charge of the Ombudsman program operated by Toledo Edison at the plant. At that time Zunk told the complainant that there was very little she could do for his because he was no longer an employee of Benchmark Technologies. Toward the end of the conversation the complainant stated that when he left he would be going to the principal headquarters of Toledo Edison. Later that afternoon, before he reached those headquarters, two incidents occurred involving Toledo Edison employees which led the complainant to think they were attempting to intimidate

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him, and be asserts that he was intimidated and did not go to Toledo Edison Headquarters, On various occasions between May 21, 1987 and about June 18, 1987 various officials of Toledo Edison led the complainant to think that he would be reemployed at the Davis-Besse plant.

On or about Jun. 20, 1987 the complainant decided that these representations were not being sincerely made, and he decided to contact the resident Nuclear Regulatory Commission ("NRC") inspector at Davis-Besse regarding the circumstances surrounding his dismissal. He was told by that official that it would take 30 to 90 days for regulatory action to occur on his complaints.

On or about August 19, 1987 the complainant met with a Department of Labor employee who advised him that the 30 days for filing a complaint under the ERA had expired and assisted him in filing formal charge of unfair labor practices against Toledo Edison Company with the National Labor Relations Board ("NLRB"). In September 1987 the complainant also contacted the Regional Office of the NRC in Chicago. On January 28, 1988 the NRC issued a "Notice of Violation" against Toledo Edison Company based on the complainant's allegations. In February 1988 the complainant contact his attorney who assisted him in filing the instant complaint on February 22, 1988.

In his complaint the complainant further alleged in part as follows:

At some point in 1987 and continuing up to the present, have been 'blackballed' by Toledo Edison Company for bringing my concerns over management practices to the attention, first, of internal Edison supervision, and subsequently, to the attention of the U.S. Nuclear Regulatory Commission and my Congressional representatives. I have been unable to obtain employment in my chosen occupation.

. . . Since my termination, I have been given negative recommendations and/or have been the target of other negative commentary by Toledo Edison Company employees, agents or representatives in connection with other employment opportunities. I have suffered emotionally, financially and have experienced loss of my business and professional reputation.

Initially, the question must be considered whether the Resented violation of BRA constituted by the complainant's discharge from employment can be combined with the asserted continuing violation of blacklisting to Prostitute one continuous pattern of illegal conduct and thus render the complaint timely as to

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all violations. the case law clearly indicates that the complaint, insofar as it relates to the original discharge from employment, cannot be rendered timely on this theory. The fact that a discriminatory discharge is the first act of a connected series of discriminatory acts is not enough to constitute a continuing violation. In order to be a continuing violation the violations must repeat themselves, as in the continued payment of a discriminatory wage. Completed acts are not acts of a continuing nature. See McPartlin v. American Broadcastlng Co., Inc., 623 F. Supp. 1334 (D.C.N.Y. 1985). Therefore, the question whether the complaint was timely as to the complainant's original discharge from employment will be considered separately. The complaint as to the discharge from employment can be considered to be timely if the time period for filing the complaint has been tolled under the doctrine of equitable tolling . Therefore, the complainant's allegations will be examined to determine whether they set forth grounds upon which tolling of the time limitation for filing complaints could occur up to the date the complaint was filed.

It is considered that it could be found, based on allegations of the complainant that during the period up until about June 18, 1987 Toledo Edison, through its agents, actively mislead the complainant respecting the cause of action in that they encouraged him to believe that he would be reemployed at the Davis-Besse plant. Thus, with respect to that time period, the first ground of equitable tolling sett forth in Shool District of the City of Allentown v. Marshall, supra, is sufficiently alleged. Also, based on the complainant's allegations, the actions of certain Toledo Edison employees intimidating the complainant prevented him in some extraordinary way from asserting his rights on May 18, 1987, thus satisfying the second Allentown test. However, the complainant, no later than June 23, 1987, concluded that he would not get a job at David-Besse and contacted the NRC and stated a complaint. As of that time, the complainant was no longer being misled and he was no longer intimidated from asserting his rights. Therefore, no later than June 23, 1987, tolling of the time limitation based on the first two Allentown tests had ceased, and the time period for filing a §5851 complaint wee set in motion. As far as those first two tests are concerned, the complainant was required to file his complaint no later than 30 days after June 23, 1987, which could have been July 23, 1987. Obviously, he did not do so.

The complainant asserts, however, that the third basis for equitable tolling occurred because on June 22 or 23, 1937 he contacted the NRC with certain safety complaints. As stated above, the third basis for equitable tolling set forth in Allentown is when "the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum."

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The essence or the "precise statutory claim in issue" in the present proceedings is the provision of a remedy to the complainant for having been discharged or otherwise discriminated against for engaging in protected activities. The Act and the regulations of both the Department of Labor, 20 C.F.R. Part 24, and of the NRC, 10 C.F.R. §50.7(b),¹ specifically provide that such a remedy to the complainant is to be sought with the Department of Labor. Thus it would appear to be doubtful that the complainant in fact asserted the"precise statutory claim in issue" with the NRC or that in view of its own regulations, the NRC would have agreed to process a complaint in which the complainant sought a remedy to himself for his asserted discriminatory discharge by the respondents or by either of them. It is noted that the complainant does not state that his complaint to the NRC sought a remedy for himself, and in faet the complainant's assertions as to the substance of his complaints to the NRC are somewhat vague. The complainants and Toledo Edison have each furnished copies of portions of the NRC findings, but I do not have before me a complete copy of the NRC findings from which it could be determined exactly what the complainant's full complaints to that body were. Therefore the record before me does not show a basis for a finding that the complainant asserted the "precise statutory claim in issue". If the complainant did not assert such a claim with the NRC, no tolling of the limitations would have occurred, as noted above, beyond June 23, 1987.

For reasons which are discussed later in this order, the complainant will be permitted to amend his complaint for the purpose of clarifying the nature of his June 1987 complaints to the NRC.

Attention is next directed from the question of illegal discharge to the question of continued illegal blackballing. The first question which will be considered la whether the complainant has standing to bring a complaint based upon continuous blacklisting when he is a former employee rather than a current employee. The rights given to "whistleblowers" by §5851 are given to an "employee". In this connection it is noted that 29 C.F.R. §24.2(b) of the regulations promulgated by the Secretary of Labor under §5851 and similar whistleblower protection statutes provides as follows:

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

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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 statutes;

(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 a proceeding or in any other action to carry out the purposes of such Federal statute.

By his internal complaints at the Davis-Besse site and by his complaints to the NRC the complainant assisted or partipated "in any other action to carry out the purposes of such federal statute," namely, the safety concerns of the statute. It is considered that the complainant's allegation of "blackballing" constitutes an allegation of blacklisting within the meaning of 29 C.F.R. §24.2(b).

Because an employer does not ordinarily blacklist a current employee, it is considered that the inclusion of blacklisting in §24.2(b) as one of the prohibited acts constitutes an interpretation by the Secretary of Labor that the protections of §58511 and similar federal statutes are broad enough to encompass former employees who are being blacklisted. It is difficult to see how this regulation could be interpreted otherwise, given the fact it includes blacklisting as one of the prohibited acts. Therefore, I hold that the term "employee" as used in §5851 includes a former employee who is being blacklisted by the former employer.

The next question to be considered is whether the complainant's complaint regarding blacklisting is specific enough to comply with the requirements of the regulations. In my opinion it is not. 29 C.F.R. §24.3(c) provides as follows:

No particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation.

In order to show a continuing violation, a complainant must establish a series of related acts, one or more of which falls within the limitations. Valentino v. U.S. Postal Service, 674 F.2d 56 {D. C. Cir. 1982). In this case, the complainant has not alleged any act of blackballing which occurred during the 30-day period prior to February 22, 1988 when he filed his complaint. Thus his complaint, as to the asserted continuing blackballing, doer not contain the

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"pertinent dates" as required by §24.3{c).

In a somewhat similar case arising under Title VII of the Civil Rights Act of 1964, Tarvesian v. Carr Division of TRW, Inc., 407 F. Supp 336 (D.C. Mass. 1976), the court denied defendant's motion to dismiss for failure to state a claim on the condition that the plaintiff submit an amended complaint properly alleging the specific date or dates upon which the defendant was alleged to have given false references to the plaintiff's prospective employers. The court observed that the date or dates allowed must place the defendant's action within the jurisdictional time limitations. It also observed, in granting the plaintiff an opportunity to amend his complaint, that it would be hypertechnical to dismiss the complaint for lack of specificity. I shall adopt a similar course of action in this case.

Accordingly, IT IS ORDERED, that Toledo Edison's motion to dismiss is denied, upon condition that the complainant submit an amended complaint postmarked no later than September 9, 1988, setting forth more specific allegations as to his June 1987 complaint to the NRC and as to the asserted continuous blackballing.

Charles W. Campbell
Administrative Law Judge

[ENDNOTES]

¹The Nuclear Regulatory Commission provides in 10 C.F.R. §50.7(b) as follows:

Any employee who believes that he or she has been discharged or otherwise discriminated against by any person for engaging in the protected activities specified in paragraph (a)(1), of this section by seek a remedy for the discharge or discrimination through an administrative proceeding in the Department of Labor. The administrative proceeding must be initiated within 30 days after an alleged violation occurs by filing a complaint alleging the violation with the Department of Labor, Employment standards Administration, Wage and Hour Division. The Department of Labor may order reinstatement, backpay, and compensatory damages.