DATE: MAY 9 1985
CASE NO. 85-ERA 13

In the Matter of

RUDOLPH A. NORMAN
    Complainant

    v.

NIAGARA MOHAWK POWER CORPORATION
    Respondent

    This involves a complaint filed against the Niagara Mohawk power Corporation alleging discrimination under 42 U.S.C. 5851, the Energy Reorganization Act. Section 210(b)(1) of the E.R.A. allows an employee who believes he has experienced prohibited discrimination 30 days in which to file a complaint. The Regulations Statutes are found in Title 29 C.F.R. Part 24.

    29 C.F.R. 24.3(b) provides that any complaint shall be filed within 30 days after the occurrence of the alleged violation. Complaints are filed with the Wage and Hour Division of the Department of Labor 20 C.F.R. 24.3(d).

    Such Office in a March 11, 1985, initial decision determined that the

complaint was not timely filed because their investigation failed to disclose any evidence of a discriminatory action within 30 days prior to the filing.

    A timely appealed to the Office of Administrative Law Judges followed.

    A hearing was scheduled in this matter at 9:00 a.m., on May 6, 1985, in Utica, New York. The Notice was dated March 28, 1985.

    On said date, counsel for Respondent appeared but neither the Complainant nor a representative appeared nor was any attempt made to request continuance and/or postponement.

    At 9:45 a.m., on the date of the hearing, the record was opened and Counsel for Respondent reiterated a Motion he had made prior to the hearing for Dismissal of the Complaint on the basis of Summary Judgment because the complaint, on its face, indicates that no violation sufficient to support a Section 210 action occurred within the 30-day period preceding the filing of the administrative complaint. Accordingly, Counsel for Respondent pleaded that the Complainant has failed to set forth an adequate basis for his Section 210 action and his complaint under the E.R.A. statute should be dismissed as a matter of law. From the documents admitted into the record (D.O.L.), all events fall far outside the 30-day limitation period.

    In the circumstances, the decision of the Wage and Hour Division denying the complaint as not timely filed from which this appeal followed is AFFIRMED, and the Motion for Summary Judgment filed by Counsel for Respondent dismissing the complaint as a matter of law is GRANTED. The complaint filed by Rudolph A. Norman against the Niagara Mohawk Power Corporation is DISMISSED.

       ROBERT J. SHEA
       Administrative Law Judge

RJS:ga