Boveri, Inc. (ABB) in 1986 and whose asserted protected activity took place in 1984, alleged that ABB reduced the amount of his long term disability payment in 1993 to offset his Social Security disability payments, in retaliation for that 9 year old whistleblowing. Majors filed his ERA complaint on May 30, 1996. One of the attachments to Majors' complaint, a letter of October 15, 1993 to him from the ABB Manager of Benefits Administration, explains that "[o]ne of the offsets in the Long Term Disability [LTD] benefit is any payment received from Social Security." Another attachment was a November 17, 1993 letter from Majors' attorney to ABB protesting that offset.

    Even if we assume that (1) the ABB Benefits Administration Department had knowledge of Majors' protected activity and (2) that ABB was motivated at least in part by that nine year old conduct, we agree with the Administrative Law Judge that this complaint should be dismissed as untimely. Majors received unequivocal notification of the reduction in LTD benefits, at the latest, in October 1993 when he received the above letter as well as a letter detailing in dollars and cents exactly how much his benefit would be reduced. See attachments to ALJ 1. In fact, as the ALJ's exhaustive review of the exchange of correspondence and other documents between the parties shows, ABB repeatedly notified him of the Social Security offset provision of the LTD plan before 1993.

    Furthermore, there was nothing in Majors' complaint to Wage-Hour or the attached materials to suggest that there was any basis for tolling the statutory time limit and we agree with the Administrative Law Judge that Majors' offered nothing additional in response to ABB's motion for summary judgment to support tolling. The fact that Majors was represented by counsel in November 1993, two and one half years before he filed his ERA complaint lends additional support to the ALJ's conclusion, which we adopt, that there is no basis for tolling the statute.

Majors' interpretation of the language of the LTD plan as not providing for an offset of Social Security benefits awarded after receipt of LTD payments is patently unreasonable and we find is precisely the kind of frivolous claim which the amendment to the ERA was intended to address. His other allegations are similarly without merit. Even if these allegations harbor intimations of some potentially provable discriminatory conduct, it is not enough, in response to a motion for summary judgment simply to assert "I am not aware of any reason why ABB" would take these actions other than out of discriminatory motives. Kesterson v. Y-12 Nuclear Weapons Plant, Case No. 95-CAA-0012, ARB Dec. Apr. 8, 1997, slip op. at 6 ("the non-moving party may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial . . . . Instead, the [party opposing summary judgment] must present affirmative evidence in order to defeat a properly supported motion for summary judgment.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986). See also, Celotex Corp. v. Catrett, 477 U.S. 317 (1986).")