English v. Whitfield
| Decision Date | 06 October 1988 |
| Docket Number | No. 87-3520,87-3520 |
| Citation | 858 F.2d 957 |
| Parties | , 3 Indiv.Empl.Rts.Cas. 1357 Vera M. ENGLISH, Petitioner, v. Dennis E. WHITFIELD, Deputy Secretary of Labor; United States Department of Labor, Respondents, General Electric Company, Intervenor. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Arthur Michael Schiller (Mark A. Venuti, Washington, D.C., on brief), for petitioner.
Ford Friel Newman (George R. Salem, Solicitor of Labor, Monica Gallagher, Associate Solicitor, Linda Jan S. Pack, for Appellate Litigation, Office of the Solicitor, U.S. Dept. of Labor, Washington, D.C., on brief), for respondents.
Peter G. Nash (Dixie L. Atwater, Ogletree, Deakins, Nash, Smoak and Stewart, Washington, D.C., William W. Sturges, Weinstein and Sturges, Charlotte, N.C., for intervenor.
Before RUSSELL, PHILLIPS and ERVIN, Circuit Judges.
Vera M. English instituted this suit under the Employee Protection Section of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. Sec. 5851 (EPS), and its implementing regulations, 29 C.F.R. Sec. 24, alleging that she was unlawfully subjected to employment related discrimination because she registered and pursued safety complaints against her employer, General Electric (GE), with the Nuclear Regulatory Commission (NRC). After an administrative law judge (ALJ) recommended that the Secretary of Labor find that English had been discharged in violation of the EPS's anti-retaliation provisions, the Secretary (by a Deputy) dismissed English's claim, ruling that she had failed to meet the 30-day filing deadline imposed by Sec. 5851(b)(1). Before us English raises two primary issues for review: whether (1) the Secretary erred in finding her complaint for discriminatory discharge barred as untimely, and whether (2) English has established a "continuing violation" of the EPS in the form of retaliatory harassment, thus allowing her to seek relief for a series of related acts of workplace harassment that might be time-barred if considered independently. We affirm the dismissal of her claim for retaliatory discharge as untimely. Because we believe that English's claim of workplace harassment is one cognizable under the EPS and may constitute a continuing violation for statute of limitations purposes, we remand that claim for first instance consideration by the Secretary of Labor.
GE operates an NRC licensed fuel production facility in Wilmington, North Carolina. The facility is involved in the processing of nuclear materials, including uranium powder, in the course of manufacturing "fuel bundles" for use at nuclear reactor sites. Areas of the facility in which workers handle nuclear materials, and are thus exposed to radiation safety hazards, are designated "controlled areas." The facility's Chemical-Metallurgical Laboratory (Chemet Lab) contains such controlled areas.
From November 13, 1972 until July 30, 1984, English was employed as a lab technician in the Chemet Lab and worked in a controlled area. Her duties included quality control procedures, which required her to analyze the concentration of uranium in samples of uranium powder.
Prior to March 1984, English had made a number of complaints to both GE and the NRC about unsafe conditions and practices in the Chemet Lab. On February 13, 1984, English sent the NRC a list of alleged safety violations in the Lab. The same allegations were brought to GE's attention in a February 24, 1984 letter from English to GE management. GE conducted an internal investigation of the allegations in March 1984 and the NRC conducted an investigation on March 26, 1984. The events leading up to this suit occurred in the interim.
During the first part of the week of March 5, 1984, English worked the 7:00 AM-3:10 PM shift in the Chemet Lab. On Friday, March 9, 1984, she switched to the 11 PM-7:30 AM shift. On Monday, March 5, while going about her duties, English claims to have found radioactive contamination left uncleaned by workers on the prior shift. During the next three days, she again discovered contaminated areas left uncleaned by prior shifts. She believed that the contaminated areas should have been obvious to Lab employees and that workers on the prior shift were careless and relying on her to clean up after them, which she claims to have done several times.
On March 9, English again found contamination in the Lab. Knowing that no supervisor would be available until Sunday, March 11, English marked the contaminated area with red tape, but left it uncleaned. She intended to show the marked area to her supervisor in order to provide proof to GE management of her complaints about the lackadaisical approach to safety of her co-workers. English believed that her prior lack of proof, a result of her repeated efforts to clean up after her co-workers, had caused GE management to ignore her earlier complaints. She noted that the contamination and red tape were still present on Saturday and Sunday, March 10-11, 1984.
On March 11, 1984, English brought the contaminated area to the attention of the supervisor on duty, William Lacewell. She admitted having purposely left the contaminated area uncleaned in an effort to prove her complaints about co-worker malfeasance, but denied having caused the spill herself. While repeating her prior complaints about her co-workers, she also raised other safety concerns, including a complaint about a defect in the Lab's microwave oven which was causing the oven to leak and release fumes. She expressed her frustration with repeatedly having had to clean up after her co-workers and advised Lacewell that she did not intend to continue doing so. She then used a radiation detection device located at the entrance to the Lab to check her work area for further contamination. GE subsequently corrected the microwave oven defect and inspected and cleaned the Lab. These actions necessitated a work stoppage in the affected areas.
As a consequence of these events, disciplinary action was taken against English. Formal charges were made against her in a March 15, 1984, letter, which accused her of:
1. the unauthorized removal of the personal survey instrument from the entrance to the laboratory;
2. the deliberate contamination of a table;
3. failure to clean up contamination, knowing it existed;
4. the continued distraction of other laboratory employees; and
5. disruption of normal laboratory activities.
English was removed from the Chemet Lab, barred from further work in controlled areas, and placed on indefinite temporary assignment in a warehouse at the Wilmington facility to begin March 16, 1984. She was placed on 12 months probation and penalized five days of work without pay. Enforcement of the latter penalty was waived.
English administratively appealed the disciplinary action. Charge one was ultimately dismissed as it was finally determined that Lacewell had given English permission to use the detection device. All other charges, except charge three, were either dropped or it was determined that no action would be taken in regard to them.
Disciplinary action was taken on charge three. English was notified of the final company decision in her case in a May 15, 1984 letter. That letter informed her that (1) she was permanently removed from the Chemet Lab and barred from working in controlled areas, (2) her probationary period was reduced from twelve to six months, (3) her temporary assignment was reduced to 90 days at current salary, during which time she could search for and bid on available positions elsewhere in the facility for which she was qualified, and (4) if she had not secured a suitable permanent position by the end of her temporary assignment, she was to be involuntarily placed on lack of suitable work status--essentially placed on layoff. 1
English worked at the warehouse position during her temporary assignment. She alleges that during that period she was regularly surveilled, intimidated, humiliated in front of her co-workers, and otherwise harassed for having made safety complaints against GE. As late as July 24, 1984, GE's Employment Administrator indicated to English that efforts were still being made to place her in a permanent position. Shortly thereafter, she was contacted by GE's Benefits Advisor as to her various benefits as applied to layoff status, since it appeared unlikely that she would find suitable permanent employment by the end of her temporary assignment. This prediction was borne out as English's last day of active employment with GE was on July 27, 1984, and she was removed from the payroll on July 30, 1984.
English then filed a complaint primarily alleging discriminatory discharge with the Department of Labor on August 24, 1984, and an amended complaint on August 27, 1984. Following an investigation of her allegations, the Administrator of the Wage and Hour Division of the Department of Labor concluded that GE had discriminated against English in violation of the EPS. The case was referred to an ALJ when both English and GE appealed the Administrator's decision.
After a hearing, the ALJ found that English was disciplined and ultimately terminated because of her initiation of and participation in the NRC safety investigation of GE. The ALJ specifically rejected GE's contention that English's complaint was untimely under the EPS. He held principally that the triggering violation she proved was her termination from employment on July 30, 1984, as to which her filing was timely. Alternatively, he held that English had established a "continuing violation" which continued into the timely filing period and allowed her to challenge any earlier effective termination.
The case was submitted for review to the Secretary of Labor, and was referred to a Deputy Secretary. The Deputy Secretary ordered the case remanded for the purpose of taking additional testimony on certain issues. The ALJ determined to...
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