Tran v. Southern California Edison Co. (agency decision, October 24, 2019)

Plain-English summary

Former Southern California Edison employee Vi Tran alleged that his long-term disability benefits were reduced because he reported data falsification at the San Onofre Nuclear Generating Station. His benefits appeal was denied in June 2004, but he did not file an Energy Reorganization Act whistleblower complaint until July 2017. The Board held that Tran had 180 days from the 2004 denial to file and that his 2016 request to recalculate the benefits did not create a new claim. It also agreed that the ALJ lacked jurisdiction to decide the merits of the employee benefit dispute. The Board affirmed summary dismissal as untimely.

Decision snapshot

• Cited authorities: 42 U.S.C. § 5851; 29 C.F.R. §§ 18.72(a), 24.109(b)(1), and 24.110(a)
• Outcome: Summary dismissal was affirmed because the ERA complaint was filed outside the 180-day period.
• Key point: Renewing a previously denied benefits request did not restart the ERA filing period for alleged retaliation tied to the original denial.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:



  VI TRAN,                                         ARB CASE NO. 2018-0024

                  COMPLAINANT,                     ALJ CASE NO. 2017-ERA-00008

         v.                                        DATE:      October 24, 2019

  SOUTHERN CALIFORNIA EDISON
  COMPANY,

                  RESPONDENT.

  Appearances:

  For the Complainant:
        Vi Tran; pro se; San Clemente, California

  For the Respondent:
        Jacob W. Daniels, Esq.; Rosemead, California

  Before: James A. Haynes, Thomas H. Burrell, and Heather C. Leslie,
  Administrative Appeals Judges

                         FINAL DECISION AND ORDER

        PER CURIAM. The Complainant, Vi Tran, filed a retaliation complaint under
  the employee protection provision of the Energy Reorganization Act (ERA), as


  amended, 1 with the Department of Labor’s Occupational Safety and Health
  Administration (OSHA). Tran alleged that he was retaliated against following his
  report of data falsification at the San Onofre Nuclear Generation Station (SONGS).
  OSHA dismissed the claim as it was not filed within 180 days of the alleged adverse
  action and no equitable tolling exceptions apply. Thus, the claim was untimely.

        The case was referred to the Office of Administrative Law Judges (OALJ) per
  Tran’s request of July 28, 2017. Respondent moved for summary decision which
  Tran opposed. The Administrative Law Judge (ALJ) issued an Order Granting
  Summary Decision on January 8, 2018, concluding the claim was untimely and that
  the OALJ does not have jurisdiction to consider a claim for benefits under
  Respondent’s employee welfare benefit plan. Complainant requested that the
  Administrative Review Board (ARB) review the ALJ’s order. We affirm.

                        JURISDICTION AND STANDARD OF REVIEW

         The Secretary of Labor has delegated to the ARB the authority to issue final
  agency decisions in review or on appeal of matters arising under the ERA and its
  implementing regulations at 29 C.F.R. Part 24. 2 The ARB will affirm the ALJ’s
  factual findings if supported by substantial evidence but reviews all conclusions of
  law de novo. Summary decision is permitted where “there is no genuine dispute as
  to any material fact and the movant is entitled to decision as a matter of law.” 29
  C.F.R. § 18.72(a) (2018). On summary decision, we review the record on the whole
  in the light most favorable to the non-moving party. Micallef v. Harrah’s Ricon
  Casino & Resort, ARB No. 2016-0095, ALJ No. 2015-SOX-00025, slip op. at 3 (ARB
  July 5, 2018).




  1      42 U.S.C. § 5851 (2005). The ERA’s implementing regulations are found at 29 C.F.R.
  Part 24 (2011).


  2      Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (April 3, 2019); 29
  C.F.R. § 24.110(a).


                                      BACKGROUND

         The following facts are undisputed. Tran was employed by Southern
  California Edison Company (SCE) from approximately 1982 to 2003. In 2003, he left
  work due to physical and emotional disability, for which he received long-term
  disability benefits under a plan administered by a contractor for SCE. Under the
  plan, Tran received benefits based on 50 percent of his salary. He disputed this
  benefit computation and claimed that he was entitled to 70 percent of his salary and
  filed an appeal with the Benefits Committee. This appeal was denied by letter dated
  June 2, 2004, was sent to Tran on that date. This letter specifically states that
  ERISA 3 “provides [Tran] the right to bring an action under section 502(a) thereof.”

         On November 9, 2016, Tran sent a letter to SCE’s CEO explaining his
  position that he had been underpaid long-term disability benefits since 2003 based
  on the allegation that they should have been calculated at 70 percent of his former
  salary. He does not mention whistleblower protection in this letter. By letter dated
  November 28, 2016, the Principal Manager, John Smolk, replied that this issue had
  been considered and rejected previously and would not be reopened. On December 1,
  2016, Tran sent a letter to SCE’s CEO, noting the letter from Smolk and contending
  that this action was taken as a result of his reporting data falsification at the San
  Onofre Nuclear Generating Station (SONGS) which affected the release of radiation
  waste into the ocean. SCE’s General Counsel Russell Swartz sent Tran a letter
  dated May 19, 2017, stating that the long-term disability benefits were properly
  administered and that his appeal rights of this issue expired. Tran filed a claim
  under the ERA by letter dated July 6, 2017, contending that he was harassed at
  work until his “health collapsed,” and he received lower long-term disability
  payments due to his reporting data falsification at SONGS. This claim was denied
  by OSHA as it was untimely.

                                       DISCUSSION

        Section 211 of the ERA provides, in pertinent part, that “No employer may
  discharge or otherwise discriminate against any employee with respect to his

  3      Employee Retirement Income Security Act, 29 U.S.C. § 1132 (2014) (ERISA).


  compensation, terms, conditions, or privileges of employment because the employee
  . . . notified his employer of an alleged violation of this chapter or the Atomic Energy
  Act of 1954.” 42 U.S.C. § 5851(a)(1)(A). Subsection 5851(a)(1)(F) contains a catchall
  provision that prohibits discrimination against an employee who “assisted or
  participated or is about to assist or participate . . . in any other manner in such a
  proceeding or in any other action to carry out the purposes of this Act or the Atomic
  Energy Act of 1954, as amended.” A timely ERA complaint must be filed within 180
  days of an alleged adverse action taken against an employee, in retaliation for
  protected activity. 4

         To prevail on an ERA whistleblower complaint, a complainant must prove by
  a preponderance of the evidence that he engaged in protected activity, suffered an
  unfavorable personnel action, and that his protected activity was a contributing
  factor in the unfavorable personnel action taken against him. If the complainant’s
  protected activity was a contributing factor in the adverse action, the employer may
  avoid liability only if it demonstrates “by clear and convincing evidence that it
  would have taken the same unfavorable personnel action” in the absence of the
  protected activity. 5

         Contrary to Tran’s contention on appeal, requesting in 2016 a correction of
  his disability benefits did not raise a new claim under the ERA. This request was
  considered and rejected 12 years previously and his alleged protected activity
  occurred in 2002-2003. As the ALJ correctly found, Tran should have filed a
  complaint under the ERA alleging whistleblower protection within 180 days of the
  June 2, 2004 letter denying Tran’s request to calculate long-term disability benefits
  to award him 70 percent rather than 50 percent of his salary. Moreover, Tran did
  not raise the issue of reporting data falsification as possible protected activity until
  December 1, 2016, long after he had been denied a re-calculation of benefits. Thus,
  we affirm the ALJ’s conclusion that the claim filed on July 6, 2017, was untimely. 6



  4      42 U.S.C. § 5851(b)(1).
  5      42 U.S.C. §§ 5851(b)(3)(C), (D); 29 C.F.R. § 24.109(b)(1).
  6       Lastly, we agree with the ALJ’s conclusion that any contention regarding the merits
  of the claim for benefits under SCE’s employee welfare benefit plan was not properly before
  the ALJ.


                                    CONCLUSION

        Accordingly, we AFFIRM the ALJ’s dismissal on summary decision as the
  claim was untimely and the ALJ did not have the jurisdiction to consider Tran’s
  contentions regarding the claim for benefits under the employee welfare benefit
  plan.

         SO ORDERED.