Reid v. Exelon Corp., LLC/Exelon Generation Co.

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
JEROME REID,
COMPLAINANT,
v.
EXELON CORP., LLC/EXELON
GENERATION CO.,
RESPONDENT.
ARB CASE NO. 2026-0022
ALJ CASE NO. 2021-ERA-00008
ALJ PATRICIA J. DAUM
DATE: August 11, 2026
Appearances:
For the Complainant:
Jerome Reid; Pro Se; Syracuse, New York
For the Respondent:
August W. Heckman III, Esq., and Marlie P. Blaise, Esq.; Morgan
Lewis & Bockius LLP; Princeton, New Jersey; Donald P.
Ferraro, Esq.; Exelon Generation Co., LLC; Kennett Square,
Pennsylvania
Before JOHNSON, Chief Administrative Appeals Judge, and KAPLAN,
Administrative Appeals Judge
DECISION AND ORDER
This case arises under the whistleblower protection provisions of the Energy
Reorganization Act (ERA), 42 U.S.C. § 5851, and its implementing regulations at 29
C.F.R. Part 24 (2026). On March 24, 2021, Complainant Jerome Reid filed a
complaint with the Occupational Safety and Health Administration (OSHA) in
which he alleged that Respondent Exelon discriminated against him for engaging in
activity protected under the ERA. OSHA dismissed the complaint and Complainant
requested a hearing before an Administrative Law Judge (ALJ). On January 25,
2022, the ALJ issued an Order Dismissing Complaint, in which the ALJ dismissed

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Complainant’s complaint because it was not timely filed with OSHA and because it
failed to state a claim under the ERA. Complainant appeals the ALJ’s Order
Dismissing Complaint to the Administrative Review Board (ARB or Board). For the
reasons that follow, we affirm the ALJ’s determination that Complainant’s OSHA
complaint was untimely.
BACKGROUND
1. History of Complainant’s Employment and Prior Claims Against Owners
of the Nine Mile Point Unit 2 Nuclear Power Plant
Complainant was employed as a Nuclear Auxiliary Operator by Niagara
Mohawk Power Corporation (Niagara Mohawk) at its Nine Mile Point Unit 2
nuclear power plant (Nine Mile Point Unit 2 or Nine Mile Point) from 1985 to 1989.1
On September 13, 1989, while Complainant was still employed by Niagara Mohawk
at Nine Mile Point, Complainant and Niagara Mohawk entered into a settlement
agreement to resolve EEOC and OFCCP claims Complainant had filed against the
company.2 Complainant’s employment at Nine Mile Point was later terminated
effective March 18, 2002.3
Since his 2002 termination, Complainant has not been employed as a regular
full-time employee by Niagara Mohawk or any other company that has
1 May 20, 2021 OSHA Determination Letter at 1.
2 Complainant’s Motion to Reject Respondent’s Motion for Dismissal at 4-5. In that
settlement agreement, Complainant agreed to withdraw multiple pending claims against
Niagara Mohawk, was placed in the position of Drafting Technician, and was to be allowed
to return to the position of Auxiliary Operator at Nine Mile Point Unit 2 after six months if
he met medical suitability requirements and requested a transfer in March 1990.
September 13, 1989 Settlement Agreement at 1-2.
3 Order Dismissing Complaint at 3 n.3. The ALJ’s Order Dismissing Complaint states
that Niagara Mohawk terminated Complainant in 2002 for performance deficiencies. Id.
Constellation Energy purchased Nine Mile Point from Niagara Mohawk in December 2000
and Complainant has alleged he became Constellation’s employee at that point. See Reid v.
Exelon Corp., 2018 WL 2441744, Civil No. 17-4043 (RBK/AMD), at *1 (D.N.J. May 30,
2018). Respondent has stated Complainant was not employed at Nine Mile Point at the
time of purchase and never became an employee of Constellation or of any of its affiliates.
April 22, 2021 Exelon Letter to State of New York Worker’s Compensation Board at 1-2.

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subsequently acquired ownership of Nine Mile Point Unit 2.4 Complainant has filed
numerous applications for employment as a nuclear worker with Respondent and
the predecessor owners of Nine Mile Point as well as numerous OSHA complaints
alleging his unsuccessful applications amount to ERA violations.5
2. Procedural History
A. OSHA Complaint
Complainant filed the complaint at issue with OSHA on March 24, 2021.6 In
it, Complainant alleged that all “[o]wners of Nine Mile Point” nuclear power plant,
including Respondent, were bound by the settlement agreement he had entered into
with Niagara Mohawk in 1989 and had continuously refused to reinstate his
employment per the settlement terms in retaliation for safety complaints he filed
while he was employed at Niagara Mohawk.7 The complaint alleged the most recent
adverse action occurred on December 15, 2020.8 Complainant also alleged his 2002
termination was retaliatory and that he had suffered other adverse actions
predating his 2002 termination because of his alleged protected activities.9
B. Proceedings Before the ALJ
On May 20, 2021, OSHA denied the complaint after finding the complaint
was not timely filed and that equitable tolling was not justified.10 Complainant
timely appealed that determination and requested a hearing before an ALJ on June
4 Order Dismissing Complaint at 3 n.3. Respondent Exelon acquired Constellation
and Nine Mile Point in April 2011. Reid, 2018 WL 2441744 at *1. Complainant has filed
suit against Constellation and Respondent to enforce the 1989 settlement agreement. See
Order Dismissing Complaint at 4-6.
5 May 20, 2021 OSHA Determination Letter at 1.
6 Order Dismissing Complaint at 2.
7 May 20, 2021 OSHA Determination Letter at 1; Whistleblower Online Complaint at
1-3.
8 May 20, 2021 OSHA Determination Letter at 1; Whistleblower Online Complaint at
3.
9 Whistleblower Online Complaint at 3.
10 May 20, 2021 OSHA Determination Letter at 1.

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12, 2021.11 Respondent filed a motion to dismiss before the ALJ, in which it argued
the complaint was time-barred and failed to state a refusal-to-hire claim under the
ERA.12 Complainant opposed the motion, and Respondent submitted a reply.13
Complainant filed a motion for leave to reply to Respondent’s reply brief, which the
ALJ denied on December 2, 2021.14
C. Third Circuit Petition for Review of the ALJ’s Denial of Complainant’s
Motion for Leave to File a Reply
On January 20, 2022, Complainant mailed a “Notice of Appeal[ ]” to the U.S.
Court of Appeals for the Third Circuit in which he alleged he had been “denied
discovery” and “due process” during the proceedings before the ALJ.15 Complainant
appealed the ALJ’s December 2, 2021 order denying his motion for leave to file a
reply to Respondent’s reply brief in support of its motion to dismiss the complaint
before the ALJ.16 Respondent filed a motion to dismiss, as did the Secretary of
Labor, who argued lack of subject matter jurisdiction because the order that
Complainant had appealed was not a final, reviewable agency action.17
D. ALJ Order Dismissing Complaint
On January 25, 2022, while Complainant’s appeal was pending with the
Third Circuit, the ALJ issued an Order Dismissing Complaint in which the ALJ
found that Complainant’s March 24, 2021 ERA complaint was untimely filed and
that Complainant had failed to state a claim for refusal to hire under the ERA.18
11 Complainant’s June 12, 2021 Objections and Request for Hearing.
12 Order Dismissing Complaint at 3.
13 See id. at 2 & 3 n.2.
14 Order Denying Claimant’s Motion for Leave to File a Reply at 1 (“I see no new
matter raised by the Respondent in its Reply to warrant yet another opportunity for the
Complainant to argue why his claim should not be dismissed for the reasons alleged by the
Respondent.”).
15 Notice of Appeal[ ] at 1, Reid v. OSHA, U.S. Dep’t of Lab., No. 22-1166 (3d Cir. Jan.
26, 2022), Dkt. No. 1-1.
16 Reid v. OSHA, U.S. Dep’t of Lab., No. 22-1166, slip op. at 1 (3d Cir. Aug. 14, 2023).
17 Secretary of Labor’s Motion to Dismiss Petition for Review for Lack of Subject
Matter Jurisdiction at 1, Reid, No. 22-1166 (Apr. 7, 2022), Dkt. No. 10.
18 Order Dismissing Complaint at 4-7.

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The ALJ’s dismissal order included a Notice of Appeal Rights, which stated that the
order would “become the final order of the Secretary of Labor unless a written
petition for review is filed with the Administrative Review Board (“the Board”)
within 10 business days of the date of this decision.”19 Despite the ALJ’s Notice,
Complainant did not appeal to the Board at that time.
E. Third Circuit Order Dismissing Petition for Review
On August 14, 2023, the Third Circuit issued an order dismissing
Complainant’s petition for review of the ALJ’s December 2, 2021 order (denying
Complainant’s motion to reply to Respondent’s reply to his opposition to its motion
to dismiss) because Complainant’s appeal sought review of an interlocutory order of
the ALJ.20 The court noted that even though the ALJ had subsequently dismissed
Complainant’s complaint in her later January 25, 2022 order, “there is no indication
that Petitioner appealed that order to the Administrative Review Board, as required
for judicial review.”21
On October 27, 2023, Complainant requested additional time to request
rehearing en banc, which was granted.22 Complainant then filed a request for
rehearing en banc on November 16, 2023,23 which the Third Circuit denied on
December 7, 2023.24
F. Congressional and Complainant Inquiries Regarding Petition for Review
to the Board
In February and March 2025, the Board received Congressional inquiries
requesting the status of an appeal that Complainant stated he had filed with the
19 Id. at 8.
20 Reid, No. 22-1166, slip op. at 1.
21 Id. (citing 29 C.F.R. § 24.110(a), (b)).
22 Request for Additional Time to File for Rehearing at 1, Reid, No. 22-1166 (Oct. 27,
2023), Dkt. No. 14-1.
23 Motion for Rehearing En Banc, Reid, No. 22-1166 (Nov. 16, 2023), Dkt. No. 20.
24 Sur Petition for Rehearing at 1, Reid, No. 22-1166, (Dec. 7, 2023), Dkt. No. 21. On
July 16, 2026, the Third Circuit denied Complainant’s June 30, 2026 Motion to Reopen
Case for the Limited Purpose of Clarifying the Status of Petitioner's Motion to Stay
Administrative Proceedings. Order, Reid, No. 22-1166 (July 16, 2026), Dkt. No. 24.

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Board.25 On February 20, 2025, the Clerk of the Appellate Boards informed
Complainant by email and voicemail that no appeal had been received or was
pending with the Board, and that he could fax a petition for review to its office.26 On
March 13, 2025, the Board likewise informed Complainant by letter that it had no
record of an appeal from the ALJ’s January 25, 2022 dismissal order and no
pending appeal from Complainant.27 The Board requested a copy of Complainant’s
petition for review, certificate of service, and proof of filing.28 The Board did not
receive those documents from Complainant in 2025 and did not hear from him
again for over a year.29
Complainant emailed the Board on March 3, 2026, and requested an update
on the status of an appeal that he stated he had filed on January 8, 2024.30
Complainant attached documents to his request showing that he had attempted to
electronically file an appeal through the Department of Labor (DOL) electronic
filing system on or around December 8, 2023, and that he submitted a query for
assistance with filing his appeal online on December 9, 2023.31 Complainant
received email responses from DOL with the Board’s contact information as well as
instructions for correcting his incomplete electronic filing on December 11 and 13,
2023, respectively.32 The documentation did not show that Complainant had
successfully submitted an appeal through the electronic filing system.33 The
documentation attached to Complainant’s March 3, 2026 email to the Board also
included a fax confirmation sheet that appeared to indicate that on January 8, 2024,
Complainant had transmitted a 183-page petition for review to the Board’s fax
number.34
25 Notice and Briefing Order at 2.
26 Id.
27 Id.
28 Id.
29 Id.
30 Id. at 2-3.
31 Id. at 3.
32 Id.
33 See id. at 2-3.
34 Id. at 3.

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G. Appeal Before the Board
In a March 12, 2026 Notice and Briefing Order, the Board accepted
Complainant’s appeal under 29 C.F.R. § 24.110(b), but the Board clarified that it
did not receive a fax or any petition for review from Complainant before March 3,
2026, and that no appeal was pending before the docketing of Complainant’s
Petition for Review on March 11, 2026.35 Both parties filed briefs with the Board.
Complainant insists Respondent is obligated to abide by the 1989 settlement
agreement.36 He contends that the 2021 OSHA complaint alleges a “continuous
chain” of retaliation by Niagara Mohawk, Constellation, and Exelon dating back to
1988–1989.37 He posits continuing violation principles apply, and that because at
least one refusal to hire him falls within the statutory filing period, all claims
related to the entire alleged chain of retaliation are also actionable.38 Essentially,
Complainant argues that the limitations period for his claims of various adverse
actions occurring even before his employment with Niagara Mohawk ended in 2002
and for any refusal-to-hire claim is triggered anew each time he submits a job
application or a demand for reinstatement under the 1989 settlement agreement to
any company with an ownership interest in Nine Mile Point.39
Complainant argues the ALJ erred in determining his ERA complaint was
untimely filed because he demanded that Respondent honor the 1989 settlement
agreement on December 15, 2020, and Respondent refused to hire him within the
35 Id. at 3-4.
36 Brief of Complainant Seeking Reversal of the ALJ’s Dismissal and Remand for
Further Proceedings (Comp. Br.) at 30-32.
37 Id. at 5.
38 Id. at 17-18.
39 Supplemental Argument in Support of Complainant’s Reply Brief: Newly Identified
Documentary Evidence Refuting Respondent’s Untimeliness and Prima Facie Arguments
(Comp. Supp. Arg. at 5) (“The Settlement Agreement itself is therefore documentary proof
that Complainant engaged in protected ERA activity. Every subsequent denial of
reinstatement by every successor employer is a continuation of retaliatory conduct arising
from that same protected activity.”).

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limitations period.40 He asserts that the ALJ erred in determining that he failed to
state a refusal-to-hire claim.41
Respondent counters that the ALJ correctly concluded that the complaint was
untimely and failed to state a refusal-to-hire claim.42 Respondent also argues that
the Board should dismiss Complainant’s Petition for Review of the ALJ’s Order
Dismissing Complaint as untimely.43 Complainant argues that equitable tolling
applies to modify the deadline to file his appeal before the Board.44
We affirm the ALJ’s determination that Complainant’s ERA complaint with
OSHA was untimely and dismiss the complaint on that basis.
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated authority to the Board to hear appeals
from ALJ decisions and issue agency decisions in cases arising under the ERA.45
The Board conducts de novo review of an ALJ’s orders on motions to dismiss.46
DISCUSSION
Under the ERA, a party alleging discharge or discrimination must file a
complaint with OSHA within 180 days of the violation.47 The ERA limitations
40 Id. at 2-3. Complainant also argued that Respondent refused to hire him in 2026 and
that his complaint was timely for this reason as well. Comp. Br. at 17.
41 Id. at 19-22.
42 Respondent’s Opposition to Brief of Complainant Seeking Reversal of the ALJ’s
Dismissal and Remand for Further Proceedings and Related Motions at 7-11.
43 Id. at 5-7.
44 Comp. Supp. Arg. at 13-15; Complainant’s Reply to Respondent’s Argument That the
Petition for Review Is Untimely, Request for Equitable Tolling, and Request for Acceptance
of Petition Nunc Pro Tunc (Comp. Reply Br.) at 1-7. Complainant’s tolling arguments
concern only the filing of his Petition for Review with the Board. See Comp. Supp. Arg. at
13-15; Comp. Reply Br. at 1-7.
45 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020).
46 Yadav v. Frost Bank, ARB No. 2020-0048, ALJ No. 2020-SOX-00017, slip op. at 3-4
(ARB June 24, 2021) (citation omitted).
47 42 U.S.C. § 5851(b)(1).

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period begins “on the date when 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.”48 Similarly, when a complainant alleges
refusal to rehire or blacklisting and the employer has not provided direct notice of a
decision not to hire, the relevant inquiry is when it became, or should have become,
apparent that the employer was refusing to hire the complainant.49
We agree with the ALJ’s determination that Complainant’s ERA complaint
was untimely filed. As an initial matter, the adverse actions comprising
Complainant’s claims of continuous retaliation dating back to the 1980s cannot be
actionable via his March 24, 2021 ERA complaint. Unlike acts alleged as part of a
hostile work environment claim, refusal to hire, termination, and other adverse
actions such as failure to promote are discrete acts that are “not actionable if time
barred, even when they are related to acts alleged in timely filed charges. Each
discrete discriminatory act starts a new clock for filing charges alleging that act.”50
Further, Complainant’s most recent applications for employment with
Respondent before filing his March 24, 2021 complaint were submitted more than
three years earlier, on February 2, 2018.51 Complainant has unsuccessfully applied
for at least 25 jobs with Respondent from June 2005 to February 2018.52 While he
may not have received formal rejections of his February 2018 applications, it should
have been apparent well before the 180-day period preceding March 24, 2021, that
those applications were unsuccessful given Respondent’s extended lack of interest
in hiring him.
48 Swenk v. Exelon Generation Co., ARB No. 2004-0028, ALJ No. 2003-ERA-00030, slip
op. at 4 (ARB Apr. 28, 2005) (citation and internal quotation marks omitted).
49 See Mehrotra v. Gen. Elec. Co., ARB No. 2022-0060, ALJ No. 2022-SOX-00014, slip
op. at 6-7 (ARB Sept. 21, 2023) (“[W]here no such notice [of the employer’s decision to refuse
to hire or blacklist] was given, the appropriate question for when the blacklisting for rehire
claim accrues is when it was apparent or should have been apparent that a complainant’s
former employer was refusing to rehire them.” (citing Levi v. Anheuser Busch Cos., Inc.,
ARB Nos. 2006-0102, 2007-0020, 2008-0006, ALJ Nos. 2006-SOX-00037, -00108, 2007-SOX-
00055, slip op. at 15 (ARB Apr. 30, 2008)).
50 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
51 Order Dismissing Complaint at 5.
52 Comp. Br. at 7-8.

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Complainant certainly knew of Respondent’s refusal to hire him when he
appealed the U.S. District Court of New Jersey’s dismissal of his claims that
Respondent’s failure to hire him was race and age discrimination and retaliation to
the Third Circuit on September 10, 2018.53 Complainant cannot restart the
limitations period for an ERA refusal-to-hire claim by renewing his decades-old
request for reinstatement after long knowing that Respondent would not hire him.54
Moreover, the ALJ correctly found that the limitations period for the ERA
refusal-to-hire claim did not restart on December 15, 2020.55 Complainant wrote to
Respondent on December 15, 2020, for help with “workers compensation claims and
settlement agreement and employment because [he] did fulfill the requirements of
the [1989] agreement” and he was “denied the opportunity to return back” to his
position as a Nuclear Auxiliary Operator C or Plant Operator D.56 Respondent’s
Assistant General Counsel explained in reply that Respondent was not a party to
the 1989 Settlement Agreement, the agreement did not apply to Respondent, and
that Complainant was not employed by Respondent at the time of his alleged
injuries.57
We do not construe Complainant’s December 15, 2020 communication as an
application for an open position with Respondent. Nor do we construe Respondent’s
response as a refusal to hire Complainant for any position for which he had applied;
rather, Respondent merely clarified that it was not bound by the 1989 Settlement
53 See Order Dismissing Complaint at 5; Brief on Behalf of Defendant-Appellee Exelon
Generation Company, LLC at 4, Reid v. Exelon Corp., No. 18-3008 (3d Cir. Aug. 23, 2019),
Dkt. No. 003113329316.
54 See Mehrotra, ARB No. 2022-0060, slip op. at 7 (“The fact that Mehrotra continued
to apply for jobs after realizing that GE had allegedly blacklisted him does not keep his
claim alive.”) (citations omitted).
55 Order Dismissing Complaint at 5-6. Complainant cites Golden State Bottling Co. v.
NLRB, 414 U.S. 168 (1973), and Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27,
(1987), to support his theory that subsequent owners of Nine Mile Point acquired successor
liability under the 1989 settlement agreement between Complainant and Niagara Mohawk.
Comp. Br. at 30. Those cases are inapposite. They address successor obligations imposed by
the National Labor Relations Act, not whether later owners of a facility are bound by a
private settlement agreement executed decades earlier by a predecessor owner. Golden
State Bottling, 414 U.S. at 170-71; Fall River Dyeing, 482 U.S. at 29-30.
56 Order Dismissing Complaint at 4.
57 Id.

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Agreement.58 Accordingly, Respondent’s response to Complainant’s December 2020
letter did not constitute a refusal to hire, and his March 24, 2021 OSHA complaint
was untimely as to all claims.
As we have reached the determination that Complainant’s ERA complaint
was time-barred, we need not address whether Complainant sufficiently pled a
refusal-to-hire claim under the ERA or whether equitable modification principles
apply to modify the deadline for Complainant to have filed his Petition for Review
with the Board.59
CONCLUSION
For the foregoing reasons, we AFFIRM the ALJ’s findings and conclusions
that Complainant’s ERA claims are untimely.60
58 See Levi v. Anheuser Busch Cos., Inc., ARB No. 2008-0086, ALJ No. 2008-SOX-
00028, slip op. at 6 (ARB Sept. 25, 2009) (noting a viable refusal-to-hire claim ordinarily
involves an application for an open position for which the employer was seeking applicants);
see also Hasan v. U.S. Dep’t of Lab., 545 F.3d 248, 251 (3d Cir. 2008) (analyzing a refusal-
to-hire claim on the premise that open positions existed and that the complainant had
applied for those positions).
59 We have reached the above determination having considered the record available to
the ALJ at the time she rendered her January 25, 2022 Order Dismissing Complaint.
Complainant’s alleged 2026 applications for employment with Respondent and any other
evidence with which he now wishes to supplement the record were not part of the record
before the ALJ. We thus deny Complainant’s Motion to Supplement the Record with Newly
Discovered Evidence. Complainant may file a new OSHA complaint concerning any alleged
adverse actions post-dating the ALJ’s January 25, 2022 order.
60 Complainant submitted documents reflecting that he filed complaints concerning
racist conduct by coworkers while employed at Niagara Mohawk and that, as early as
March 1, 1990, he requested a transfer to the position he had previously held at Niagara
Mohawk. It is not clear why Complainant was not returned to that position. We do not
minimize the significance of these experiences, and we recognize that they may have been
painful. Nevertheless, because any claims arising from these events are untimely, they fall
outside the scope of our review.

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SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
ELLIOT M. KAPLAN
Administrative Appeals Judge