DOL Home > OALJ > Whistleblower > Ray v. Harrington, 79-SDW-2 (Sec'y July 13, 1979) |
In the Matter of
DONALD LEE RAY, on behalf of
himself and all others similarly
situated,
Complainant
v.
K. RAY HARRINGTON,
WILLIAM R. BROCK,
LESTER WILLIAMS, JR. all in
their official and individual
capacities, and the METROPOLITAN
GOVERNMENT OF NASHVILLE and
DAVIDSON COUNTY, TENNESSEE
Defendants
This is a proceeding under the Safe Drinking Water Act (88 Stat. 1660, et seq.; 42 U.S.C. 300f, et seq.), hereinafter referred to as the Act. Section 1450(i) of the Act (88 Stat. 1692; 42 U.S.C. 300j-9(i)) prohibits discrimination against an employee because of actions to carry out the purposes of the Act. It provides that an employee who believes he has been discriminated against in violation of that section may file a complaint with the Secretary of Labor within 30 days after the violation occurs.
Donald Lee Ray filed a complaint, a supplemental complaint, and amendments to the complaint, in which he alleged various acts of discrimination against him by the defendants. Such acts included primarily an unfavorable performance rating given him on November 20, 1978 in connection with his job as head of a chemistry laboratory operated by the defendants, and his transfer on February 23, 1979 from that job to another job in Project Prevent/Recover, a project concerned with safe transportation of hazardous material. The defendants filed a motion to dismiss the complaint on the ground that it was not timely filed. After a hearing before an Administrative Law Judge, the Judge issued a
recommended decision, dated June 5, 1979. He found that 100 days elapsed between the unfavorable performance rating on November 20, 1978 and the filing of the complaint; therefore the complaint concerning that allegedly discriminatory act was not filed within the 30-day time limitation prescribed in the Act, and was barred.1 The Judge concluded that the complaint with reference to other alleged acts of discrimination which occurred more than 30 days prior to the filing of the complaint was similarly barred.
The Administrative Law Judge found that the supplemental complaint, concerning Ray's transfer from the chemistry laboratory to another job, was timely filed, and he considered this matter on its merits. His discussion thereof, on pages 6 and 7 of his decision (in which the Metropolitan Government of Nashville and Davidson County, Tennessee are referred to as Metro), is set out below.
On the basis of the entire record, it is my opinion that the findings of fact, conclusions of law, and recommendation contained in the Administrative Law Judge's recommended decision dated June 5, 1979 are supported by the evidence in the record, are in accordance with applicable law, and are proper, and I adopt such decision as my own. I conclude that Ray's transfer from his job in the laboratory to Project Prevent/ Recover was not a violation of the Act, and that he did
not file a timely complaint with respect to other alleged acts of discrimination. Accordingly, the complaint, supplemental complaint, and amendments to the complaint filed by Donald Lee Ray are dismissed.
Dated at Washington, D.C.
this 13th day of July, 1979
Secretary of Labor
1 Ray appealed the unfavorable performance rating pursuant to the grievance procedure provided in the civil service regulations. He alleges that the grievance panel found the performance evaluation inaccurate in certain particulars, but that on January 18, 1979 his supervisor refused to accept the recommendations of the grievance panel. Ray argued that such refusal constituted a new and separate act of discrimination. He also argued that the discrimination was a continuous course of conduct, extending into the 30- day limitation period, and was a single violation. The Judge rejected these contentions. He also held that the statutory time limitation was not tolled by Ray's pursuit of the grievance procedure.