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USDOL/OALJ Reporter
Office of Administrative Law Judges 1111 20th Street, N.W. Washington, D.C. 20036 Date: December 11, 1987 Case No. 84-ERA-27 IN THE MATTER OF
HOWARD SAMUEL NUNN, JR.,
v.
DUKE POWER COMPANY,
MOTION FOR SUMMARY JUDGMENT On September 10, 1987, Judge Eric Feirtag issued an Order to Show Cause why this claim should not be deemed timely filed. Respondent was given until october 20, 1987, to respond and the Complainant was given until November 9, 1987 to reply. On October 20, 1987, Respondent submitted a Response to Order to Show Cause and Motion for Summary Judgment. Pursuant to the Rules of Practice and Procedure governing administrative hearings a party is given ten (10) days to respond to a motion for summary judgment. 29 C.F.R. § 18.40(a). On November 9, 1987, Complainant submitted Complainant's Response to [Page 2] Respondent's Response to order to Show Cause and Motion for Summary Judgment. This response was not submitted within the ten day period allowed and there was no request for an extension of time. Consequently, in light of 20 C.F.R. § 18.40(a), complainant's response will not be considered in ruling on Respondent's motion for summary judgment. Respondent also submitted a response to Complainant's reply on December 4, 1987.
In order to prevail on a motion for summary judgement, the moving party must establish that there is no genuine issue of material fact and that it is entitled to prevail as a matter of law. 29 C.F.R. § 18.40(d). Respondent's motion, accompanied by exhibits and affidavits, is not sufficient to establish that there is no genuine issue of material fact regarding whether this claim was timely filed. Therefore, Respondent cannot prevail on its motion. The regulations governing the procedure for handling discrimination complaints under the Energy Reorganization Act of 1974 state that a "complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing." 29 C.F.R. § 24.3(b). Complainant, Howard Samuel Nunn, Jr., worked for Respondent, Duke Power Company, as a welder from September 18, 1978 until October 19, 1983. During his employment, Complainant reported numerous safety related problems to his supervisors, the Palmetto Alliance, a legal intervenor involved in the licensing proceeding for the Catawba Power Plant, and personnel of the Government Accountability Project. On October 14, 1983; Complainant was "removed from service." Respondent alleges that this removal was based on excessive absenteeism. Complainant's position is that it was part of a continuing course of retaliation for his safety complaints. An investigation was conducted after Complainants removal from service, which is normal company procedure, and on october 19, 1983, Complainant was officially terminated. A letter dated November 18, 1983, and stamped received on November 22, 1983, was sent to the Wage and Hour Division of the U.S. Department of [Page 3] Labor by Complainant. This letter serves as his complaint. Respondent contends that the "operative decision" to terminate the Complainant was made on october 14, 1983, and communicated to Complainant on that date. Thus, Respondent argues that the 30 day filing requirement should run from October 14, 1983, rendering the complaint untimely. Respondent further contends that the october 19, 1983 letter, officially terminating Complainant's employment, was merely the implementation of a decision previously made. See Respondent's Motion for Summary Judgment, Exh. O. In support of this argument, Respondent cites Delaware State College v. Ricks, 449 U.S. 250 (1980) and Chardon v. Fernandez, 454 U.S. 6 (1981). In these cases the Court held that the limitation period for filing, set out in the regulations, begins to run when the operative decision to terminate or deny tenure is made and communciated to the employee, not the date when the termination is implemented.
A review of the Ricks case is helpful in defining what the
Court means by the "operative decision" to deny tenure.
Columbus Ricks was hired as a professor at Delaware State
College in 1970. "By June 26, [1974] the tenure committee had
twice recommended that Ricks not receive tenure; the Faculty
Senate had voted to support the tenure committee's
recommendation; and the Board of Trustees formally had voted to
deny Ricks tenure." 449 U.S., at 263, 101 S.Ct., at 506. The
Court held that the operative decision was made when the Board
of Trustees formally voted to deny tenure.1
Id. at 262, 101
S.Ct., at 505.
Respondent, Duke Power, argues that the October 14, 1983
removal from service coupled with the investigation on the same
day is comparable to when he operative decision was made in
Ricks. See Respondent's Motion for Summary Judgment at 14;
Exh. E (Brewer Aff.) at 31; Exh. L (Sutton Aff.) at 21.
I find the holding in Ricks dispositive but not in the
manner interpreted by Respondent. The operative decision in
Ricks was made after two recommendations by the tenure
committee, review by the Faculty Senate and then a formal vote
by the Board of Trustees; a long and elaborate process. The
stated policy of Respondent, Duke Power, is to remove an
employee from service, conduct an investigation resulting in a
recommendation and then if warranted the employee is
discharged. See Respondent's Motion for Summary judgment Exh,
A. It remains unclear at what point between October 14, 1983,
when Complainant was removed from service, and October 19, 1983,
when Complainant was officially terminated, that the operative
decision to terminate was made. This dispute is genuine and
goes to the heart of the issue of timeliness. Therefore
Respondent cannot prevail on its Motion for Summary Judgment.
Respondent moved, in the alternative, for Partial summary
Judgment to limit Complainant's case to any events or actions by
Respondent on or after October 17, 1983. Respondent argues that
any events prior to this date were separate and distinct and are
thus time barred. This motion is also denied for reasons
previously stated. If at hearing Complainant establishes that
his claim is timely, he shall have the opportunity to show that
any relevant prior events that may have occurred were part of a
continuing course of retaliation resulting from his safety
complaints.
In Complainant's November 9, 1987 reply brief a request was
made that additional discovery be allowed. complainant's
request is granted. Complainant also requested that it be
allowed to respond to and brief any future summary judgment
motions in its post-trial brief. This request is denied
pursuant to the regulations at 29 C.F.R. 6 18.40.
1. Respondent's Motion for Summary Judgment is DENIED.
2. Respondent's Motion for Partial Summary Judgment is
DENIED.
3. It is further ordered that the parties shall complete
all discovery 60 days from the date of this order.
4. Upon completion of discovery the parties shall have 30
days to comply with the following requests:
B. Notify the undersigned as to the anticipated
length of trial;
C. Notify the undersigned of the preferred location
for trial, and if it is to be held in North
Carolina whether Winston-Salem would be a suitable
location.
D. Confer and discuss settlement of all issues and
notify the undersigned promptly if the case is
settled; and
E. The parties should be prepared at the commencement
of trial to stipulate the admission of facts
and documents about which there is no reasonable
dispute.
6. The trial is tentatively scheduled for the week of may
8, 1988.
DAVID A. CLARKE, JR.
Administrative Law Judge
Washington, D.C.
1 A letter was drafted reflecting the
decision of the Board of
Trustees and sent on June 26, 1974, informing Ricks that he had
been denied tenure, but was being offered a one year "terminal"
contract at the conclusion of which his employment would end.
Id. at 259, 101 S.Ct., at 504.
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