DOL Home > OALJ > Whistleblower > Pantanizopoulos v. Tennessee Valley Authority, 96-ERA-15 (ARB Oct. 20, 1997) |
ARB CASE NO. 97-023
ALJ CASE NO. 96-ERA-15
DATE: October 20, 1997
In the Matter of:
JOHN N. PANTANIZOPOULOS,
v.
TENNESSEE VALLEY AUTHORITY,
COMPLAINANT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
This case arises under the employee protection provision of the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. §5851 (1988 and Supp. V 1993). Complainant, John Pantanizopoulos, alleged that Respondent, the Tennessee Valley Authority (TVA), violated the ERA when it lowered the rating on his fiscal year 1994 performance evaluation, which in turn caused him not to receive a monetary performance award for that year. The TVA filed a motion for summary decision, which the Administrative Law Judge (ALJ) granted in a Recommended Decision and Order (R. D. and O.). We accept the ALJ's recommendation to grant summary decision and dismiss the complaint on one of the two grounds on which the ALJ relied.
Pantanizopoulos worked at the TVA's Watts Bar Nuclear Plant as a quality assurance (QA) engineer whose duties included reporting safety issues and construction deficiencies. R. D. and O. at 2. Pantanizopoulos accepted an early retirement incentive offer, retired as of October 16, 1994, and does not contend that his retirement was discriminatory.
TVA employees routinely receive quarterly performance evaluations that
are cumulated into a fiscal year (FY) evaluation shortly after the end of the fiscal year on
September 30. Dep. at 15, 22.2 Yearly evaluations that are sufficiently high lead to monetary performance
awards that usually are distributed in December or January.
Pantanizopoulos recalls discussing his performance with his immediate
supervisor, Daryl Armentrout, for the first, third, and fourth quarters of FY 1994. Dep. at
14-15. On the basis of the supervisor's evaluation for those quarters, Pantanizopoulos'
performance rating averaged more than 3.0 (on a numerical scale in which 4.0 was the highest
rating possible). Id.; Dep. Ex. 2. At the time of his retirement in October 1994,
Pantanizopoulos had not received written copies of the performance evaluations for the third
and fourth quarters of FY 1994.
Armentrout sent the quarterly performance ratings of Pantanizopoulos
to his superior, David Kehoe, for approval. Kehoe was the QA manager at the Watts Bar
nuclear plant. Kehoe signed a FY 1994 yearly performance appraisal of Pantanizopoulos on
July 7, 1995, in which he rated Pantanizopoulos' performance numerically as 2.1 for the year.
Dep. Ex. 3. Kehoe did not obtain Pantanizopoulos' signature on the evaluation, but rather
noted that Pantanizopoulos was "not available." Id. Kehoe did not
send a copy of the evaluation to Pantanizopoulos at that time.
During a March 1996 get together with other Watts Bar retirees,
Pantanizopoulos realized that he had not received either a performance award for FY 1994 or
a copy of some of the quarterly evaluations and the final evaluation for that year. Complaint
at 1. Pantanizopoulos asked TVA to provide copies of the evaluations to him. Id.
In response, he received on March 26, 1996 a copy of the last two quarterly evaluations and
his final FY 1994 performance evaluation. Id.
Although the average of Armentrout's numerical ratings would have
qualified Pantanizopoulos to receive a monetary performance award, the numerical rating
given by Kehoe did not. Complaint at 2. Pantanizopoulos filed this complaint on April 4,
1996, alleging that TVA violated the ERA when it lowered the grade on his yearly
performance evaluation. He seeks payment of a performance award of approximately
$4,000.00.
TVA moved for summary decision on the ground that the complaint was
not timely and, in the alternative, that Pantanizopoulos cannot establish a prima
facie violation of the employee protection provision. The ALJ granted the motion on
both grounds.
Timeliness
The ERA prohibits an employer from discriminating against, or
discharging, any employee because the employee has engaged in certain protected activities.
42 U.S.C. §5851(a)(1). A person who believes that he has been discriminated against
in violation of that prohibition "may, within 180 days after such violation occurs, file
. . . a complaint with the Secretary of Labor. . . ." 42 U.S.C. §5851(b)(1).
The ALJ found that the complaint was not filed timely:
We disagree with the ALJ's timeliness analysis. The Secretary long has
held that the ERA's limitation period begins running on the date that the employee is informed
of the challenged employment decision. Rainey v. Wayne State Univ., Case No.
89-ERA-8, Sec. Final Dec. and Ord, May 9, 1991, slip op. at 2 and Ray v. Tennessee
Valley Authority, Case No. 88-ERA-14, Sec. Final Dec. and Ord, Jan. 25, 1991, slip
op. at 7. As the Seventh Circuit explained in a case under the Age Discrimination in
Employment Act, Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.
1990), cert. denied, 501 U.S. 1261 (1991):
The ALJ next seized upon the date the performance evaluation was
signed, July 7, 1995, as the date when Pantanizopoulos should have known about the alleged
violation, the lowering of the numerical rating on his yearly evaluation. However, the record
shows indisputably that TVA did not provide the evaluation to Pantanizopoulos until he
inquired about it in 1996. There is no reason to fault Pantanizopoulos for not divining that
TVA had prepared a FY 1994 evaluation some nine months after the end of that fiscal year.
Pantaniozpolous could have reasonably concluded that the delay in receiving his evalulation
and any bonus to which he was entitled was due to a processing error or oversight, particularly
in light of his retirement. The delay in itself was insufficient to put him on notice that the
award was wrongly being denied him.
Applying the discovery rule to the facts of this case,
Pantanizopoulos's claim accrued on March 26, 1996, when he received a copy of the FY 1994
performance appraisal and discovered that he had been injured. Since Pantanizopoulos filed
this complaint only nine days later, on April 4, 1996, we find that the complaint was timely
filed.
The Merits
The ALJ also granted summary decision to TVA on the merits, finding
that Pantanizopoulos has not provided any evidence that he engaged in an activity protected
under the ERA or that TVA violated the act in denying him a performance award. R. D. and
O. at 4-5. The ALJ correctly stated the standard for granting summary decision and noted that
Pantanizopoulos did not provide any evidence to counter the affidavit and evidence submitted
by TVA. The ALJ noted that "Complainant acknowledged that he was unaware of any
concern he had raised which would cause his rating to be lowered." R. D. and O. at 2-3, citing Dep. 41-42. The ALJ held that:
We adopt the ALJ's discussion and findings on the merits. R. D. and
O. at 4-5. Accordingly, we DISMISS the complaint.
SO ORDERED.
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
1 Because the recommendation to
dismiss the case was made on summary grounds and determination of factual issues is not necessary to
render this decision, we do not make any factual findings.
2 Reference is to the deposition of
Pantanizopoulos, submitted with TVA's motion for summary decision.
[Page 3]
R. D. and O. at 3-4.
[Page 4]
The Secretary has held that the ERA limitations period begins to run
"when the facts which would support the discrimination complaint were apparent or
should have been apparent to a person with a reasonably prudent regard for his rights [and]
similarly situated to Complainant." McGough v. United States Navy, Case
No. 86-ERA-18, Sec. Rem. Dec. and Ord., June 30, 1988, slip op. at 10. The ALJ faulted
Pantanizopoulos for not realizing in December 1994 or January 1995 that he had not received
a monetary performance award and promptly discovering why. At that time, TVA had not
even prepared his FY 1994 performance evaluation, and therefore even a very diligent person
could not have known about the injury at issue.
[Page 5]
R. D. and O. at 5.
Chair
Member
Alternate Member