DOL Home > OALJ > Whistleblower > Pantanizopoulos v. Tennessee Valley Authority, 96-ERA-15 (ALJ Nov. 27, 1996) |
Date: February 20, 1997
Case No.: 96-ERA-15
In the Matter of:
JOHN N. PANTANIZOPOULOS,
Complainant,
v.
TENNESSEE VALLEY AUTHORITY,
Respondent
Complainant appeared pro se.
Brent Marquand, Esq.
For Respondent
Before: DANIEL A. SARNO, JR.
Administrative Law Judge
This proceeding arises from a claim under Section 211 of the Energy Reorganization Act ("the act") of 1974, 42 U.S.C. § 5851 (1994). Respondent seeks a summary decision on the grounds of untimely filing of complaint and lack of a prima facie case.
Complainant filed a complaint under Section 211 alleging that
his fiscal year 1994 (FY 94) service review had been lowered resulting in a loss of performance
award compensation for FY 94. Respondent, Tennessee Valley Authority (hereinafter TVA),
now
files a motion for summary decision pursuant to 29 CFR §§ 18.1(a), 18.40, and
18.41
(1996). In support of this motion, Respondent offers the original complaint, complainant's
deposition, and the declaration of David V. Kehoe1 . The findings and conclusions which follow are based on a complete review of
the
entire record in light of the arguments of the parties, applicable statutory provisions, regulations,
and
pertinent precedent.
1. Whether Complainant's complaint was filed in a timely
manner.
2. Whether Respondent is entitled to summary decision
on the basis that Complainant has failed to provide a genuine issue of material fact.
FINDINGS OF FACT Respondent employed Complainant from July 19, 1976 through
October 16, 1994. Complainant chose to separate from Respondent in response to an offer of an
"early-out incentive." Complainant worked as a Quality Assurance Engineer (QA) at
the Watts Bar Nuclear Plant (WBN) from August 25, 1986 until he separated from Respondent.
Complainant's duties as a QA included reporting safety issues and construction deficiencies
(C-1).
Upon separation, Claimant had not received his performance
evaluations for the third and fourth quarters of FY 94. These evaluations are routinely completed
at the end of the quarter and performance awards arrive in December or January after the end of
the
fiscal year. In this case, Claimant could have expected notification of an award in December
1994,
or January 1995. In fact, the evaluation report was not completed until July 7, 1995 (Dep. Exh.
3).
On that form, David Kehoe, WBN QA manager, indicated that Complainant had earned an
overall
performance rating of 2.1 (Dep. Exh. 3). Complainant's immediate supervisor, Daryl
Armentrout,
gave him ratings of 2.9 to 3.25 (C-2). Armentrout passed on these ratings to Kehoe for approval.
Complainant was aware of TVA's evaluation process (Dep. 15, 22, 48, 56). Complainant knew
that
an evaluation of his work would occur every three months and that he would receive a quarterly
statement of performance evaluation (Dep. 15, 22). In March 1996, Complainant noticed that he
had
not received the performance evaluations in question and wrote to Respondent for copies of
these
documents. Complainant received his performance evaluations on March 26, 1996 (C-1).
Complainant filed this claim on April 4, 1996 (C-1).
Bonuses and awards to employees for performance are given
at the end of the fiscal year and are based on each employee's performance review (C-1).
Because
of Complainant's formal review rating, he did not receive a performance award for the last two
quarters of FY 94 (C-2). The rating given by Armentrout would have allowed Complainant to
receive a performance award (C-2).
Complainant raised the matter of his lowered performance
evaluation to an inspector from the Nuclear Regulatory Commission (NRC) who inquired as to a
connection with any safety concerns that Complainant may have had. Complainant
acknowledged
that he was unaware of any concern he had raised which would cause his rating to be lowered
(Dep.
41-2). Complainant was unaware of the reason for the change in his performance rating (Dep.
56).
The NRC inspector informed Complainant that upper
management had decided to change employee's evaluations at WBN, specifically the QA
personnel
(Dep. 40-1). Mr. David Kehoe, the WBN QA Manager, stated that the supervisors' evaluations
for
all QA employees were coordinated to ensure that the overall ratings were consistent across
supervisors and at different locations (Kehoe-2).
DISCUSSION In an action for summary decision, I must analyze the facts in
the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd., v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
A. Claim Was Untimely Filed.
A claim under the act must be filed within180 days after the
alleged discrimination in violation of the act occurs. 42 U.S.C. §5851(b)(1). Complainant
alleges that discrimination occurred when Respondent lowered the performance ratings given to
Complainant by his immediate supervisor in the report dated July 7, 1995 (Dep. Exh. 3).
Complainant did not file this complaint until April 4, 1996, nearly 270 days after the acts of
discrimination. Since the complaint was filed more than 180 days after the alleged
discriminatory
event, it is untimely and must be dismissed. Hill v. TVA, No. 87-ERA-23 (Apr. 21,
1994),
aff'd sub nom. Hill v. U.S. Dep't of Labor, 65 F.3d 1331 (6th Cir. 1995);
School
Dist. v. Marshall, 657 F.2d 16 (3d Cir. 1981); English v. Whitfield, 858 F.2d 957,
961-2
(4th Cir. 1988).
Complainant alleges that the limitations period should begin
to run when he discovered that Respondent had changed the performance ratings. Complainant
was
aware that Respondent performed evaluations and that reports of those evaluations were issued
every
three months (Dep. 15). Kehoe revised the performance ratings in July 1995. Claimant 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. Complainant was also aware that performance awards issued
after
the completion of evaluations. Complainant possessed adequate information as to whether or not
he
had received such an award for work performed in FY 94. Complainant admitted that the
performance awards usually arrived in the December or January following the end of the fiscal
year
(Dep. 21). Complainant 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 Complainant'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.
The Secretary and the Administrative Review Board have
strictly applied the limitations period in dismissing cases involving TVA. E.g.,
Guinn
v. TVA, ARB No. 96-187 (Sept. 27, 1996); Ottney v. TVA, No. 87-ERA-23 (Apr.
21,
1994); Ballentine v. TVA, No. 91-ERA-23, at 2 (Sept. 23, 1992); Howard v.
TVA,
No. 90-ERA-24, at 2 n.2 (July 3, 1991), aff'd sub nom. Howard v. U.S. Dep't of
Labor, 959 F.2d 234 (6th Cir. 1992); Billings v. TVA, No. 87 ERA-5, at 3 n.2 (Sept.
25,
1990), aff'd sub nom. Billings v. Dole, 936 F.2d 572 (6th Cir. 1991), cert denied,
502
U.S. 990 (1991); Billings v. TVA, No. 86 ERA-38, at 8-9 (June 28, 1990), aff'd sub
nom. Billings v. Dole, 923 F.2d 854 (6th Cir.), cert. denied, 501 U.S. 1235
(1991); Riden v. TVA, No. 89-ERA-49 (July 18, 1990). I find no reason to stray from
this
line of cases and find that Complainant's late filing is grounds for dismissal of this complaint.
B. Merits of Complainant's Complaint
Complainant's complaint also fails to raise the genuine issues
of material fact necessary to deny a motion for summary judgment.
A "moving party is 'entitled to a judgment as a matter
of law'" when "the nonmoving party has failed to make a sufficient showing of an
essential element of [its] case with respect to which [it] has the burden of proof."
Celotex
Corp. v. Liberty Lobby, In., 477 U.S. 242, 323 (1986). One of the essential elements of a
prima
facie ERA case that complainant must prove is that he/she engaged in a protected activity2 . Dean Dartey v. Zack Co. of
Chicago,
Case No. 82-ERA-2 (Apr. 25, 1983). There is nothing in the complaint or in any evidence before
me here that indicates that Complainant was engaged in any activity protected by the act.
Complainant argues only that he is entitled to a performance award because someone who was
not
his immediate supervisor changed his performance evaluation causing a reduction in his award.
In
itself, receipt of a performance award is not protected activity under the act. Complainant does
not
claim that he had reported any violations of the act or was commencing an action under the act.
In
fact, complainant specifically stated that he was unaware of any reports which he had filed which
may have caused Respondent to lower his performance rating.
For Respondent to prevail, it must show that there is "no
genuine issue of material fact." [emphasis original] Anderson v. Liberty
Lobby, 477 U.S. 242, 247 (1986). A claim that Respondent's evidence MAY be discredited
is
not basis for a denial of summary judgment. The party opposing the motion may not rest on
mere
allegations or denials in his/her pleading, but must set forth specific facts showing genuine issues
for trial. Anderson, 477 U.S. at 256. The opposing party must show more than a
"metaphysical doubt" as to the material facts. Matsushita, 475 U.S. at 586.
He/she must come forward with specific facts showing that there is a genuine issue of fact.
Matsushita, 475 U.S. at 587. 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.
RECOMMENDED ORDER It is therefore recommended that:
Respondent's motion for summary decision be granted and the
complaint dismissed.
DANIEL A. SARNO, JR.
DAS/pak
1Hereinafter the supporting documents
offered
by Respondent will be referred to as follows: 2The act prohibits an employer
from
discriminating against an employee who:
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[Page 3]
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Administrative Law Judge
Newport News, Virginia