DATE: June 1, 1995
CASE NO. 85-ERA-13


IN THE MATTER OF

RUDOLPH A. NORMAN,

          COMPLAINANT,

     v.

NIAGARA MOHAWK POWER
CORPORATION

          RESPONDENT.


BEFORE:   THE SECRETARY


                         FINAL DECISION AND ORDER

     This case arises under the employee protection provision of
the Energy Reorganization Act of 1974, as amended (ERA or the
Act), 42 U.S.C. § 5851 (1988) and the regulations governing
its implementation at 29 C.F.R. Part 24 (1994).  The ERA provides
protection from discriminatory employment actions against covered
employees who engage in certain protected activity.  Before me
for review is the Administrative Law Judge's (ALJ) [Recommended]
Decision and Order (R. D. and O.), issued May 9, 1985.  The ALJ
recommended that the case be dismissed.
                                BACKGROUND
     In a complaint filed with this Department on January 22,
1985, the Complainant alleged that job transfers he received in
August and October 1984 and unspecified "harassments . . .
suffered in the past four months" violated his rights under the
Act's employee protection provisions.  Following an investigation
of these allegations, the Assistant Area Director (Albany, New
York) of the Wage and Hour Division issued an initial decision
finding that the complaint had not been timely filed within 30 
[PAGE 2]
days of the alleged discriminatory conduct, as required by the
Act.  42 U.S.C. § 5851(b)(1) (1988); 29 C.F.R. §
24.3(b).
     On May 6, 1985, following notification to both parties dated
March 28, 1985, an evidentiary hearing was convened.  Neither
Complainant nor any representative of his appeared.  The ALJ
opened the record and considered a motion for summary judgment
filed by Respondent.  Respondent's motion for summary judgment
was granted by the ALJ because the record revealed no genuine
issue as to any material fact sufficient to support an allegation
that discrimination had occurred within 30 days of the filing of
the complaint.  The complaint was dismissed as a matter of law. 
R. D. and O. at 2.  Based on my review of the record, I affirm
the ALJ's recommended decision.
                                DISCUSSION
     At the time Norman filed this complaint, the ERA provided
that an employee had thirty days after a violation of the
employee protection provision to file a complaint with the
Secretary of Labor.  42 U.S.C. § 5851(b)(1) (1988). [1] 
The ALJ's decision to dismiss the complaint was made in response
to Respondent's motion for summary judgment.  The ALJ found that,
"[f]rom the documents admitted into the record (D.O.L.), all
events fall far outside the 30-day limitation period."  
R. D. & O. at 1.  
     The case record reveals that the parties presented their
respective arguments regarding the summary judgment motion prior
to the scheduled hearing date of May 6, 1985.  On April 26, 1985,
Respondent submitted the motion and on May 3, 1985, Complainant,
through his then counsel, submitted a Memorandum of Law In
Opposition to Respondent's Motion To Dismiss the Complaint.
     A motion for summary judgment in an ERA case is governed by
the Rules of Practice for Administrative Law Judges as set forth
at 18 C.F.R. §§ 18.40 and 18.41.  Trieber v.
Tennessee Valley Authority, Case No. 87-ERA-25, Sec. Dec. and
Order, Sept. 9, 1993, slip op. at 7.  A party opposing a motion
for summary judgment "must set forth specific facts showing that
there is a genuine issue of fact for hearing."  29 C.F.R. §
18.40(c); Celotex Corp. v. Cavett, 477 U.S. 317 (1986).  
     Respondent sought a summary judgment and submitted evidence
in the form of an affidavit of counsel alleging that the
complaint was not timely filed.  In support thereof Respondent
submitted a March 11, 1985 letter from the Wage and Hour
Division's Assistant Area Director finding that "[o]ur
investigation did not disclose any evidence of a discriminatory
action occurring within the [timely] 30-day period."  That letter
also noted that the complaint was filed on Jan. 22, 1985,
regarding discrimination which allegedly "took place in August of
1984."

[PAGE 3]
     In response to the motion for Summary Judgment, the
Complainant filed a memorandum of law resisting the motion, but
submitted no affidavit [2]  or documentary evidence to support
the allegations set out in the memorandum of law.  Complainant
had the opportunity to respond to the motion for Summary
Judgment,  yet he failed to provide factual support for his
argument as required by the rules.  See 29 C.F.R. §
18.40-41.  The code states that "[w]hen a motion for summary
judgment is made and supported as provided in this section, a
party opposing the motion may not rest upon the mere
allegations or denials of such pleadings."  (Emphasis added). 
24 C.F.R. § 18.40(c). 
     Under the circumstances, including the evidentiary record
then before him, the ALJ appears to have fully and fairly
considered the parties' submissions.  As a result, I accept the
ALJ's finding that Complainant Norman failed to set forth with
appropriate specificity facts indicating a genuine issue for
hearing.  Thus, the ALJ's determination that Respondent was
entitled to summary judgment as a matter of law is correct and I
adopt it.
     Finally, note must be made of certain procedural issues
raised by Complainant before me, as follows:  1) a September,
1985 Petition for Remand and Consolidation, augmented by a
similar pleading filed July 31, 1986, and 2) a November, 1988
motion to disqualify the firm of Bond, Schoeneck and King, as
opposing counsel, from further participation in this matter.  As
to the latter, a subsequent request for a decision and order of
the Secretary of Labor, filed on July 22, 1994, by Complainant's
new attorneys withdraws the request for disqualification of
opposing counsel. [3]   As to the request for remand and
consolidation, Complainant's latest petition seeks to have that
request converted into a request for the Secretary to issue a
decision and order reviewing and remanding the matter to the ALJ.
July 22, 1994 petition at 1-2.  Since I have held that the ALJ's
decision to dismiss this complaint was correct as a matter of
law, there are no appropriate issues for remand or
reconsideration. [4]     Accordingly, as explained herein, the decision of the ALJ is
AFFIRMED and the complaint IS DISMISSED.
     SO ORDERED.




                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.

[PAGE 4]






[ENDNOTES]
           
[1] 
  Norman filed his complaint on January 22, 1985.  Section 2902(b)
of the Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat.
2776, amended the time period for filing a complaint to 180 days
for claims filed on or after its enactment, October 24, 1992.  See
Section 1902(i) of Pub. L. No. 102-486.  Therefore, the 30-day
limit applies to this case.

[2] 
  Complainant's counsel did submit an affidavit, but it makes no
mention of the timeliness of the complaint.

[3] 
  See, in any event, the decision of the United States
Court of Appeals for the Second Circuit denying a request for
disqualification.  Norman and Bassett v. Niagara Mohawk Power
Corp., 873 F.2d 634 (2d Cir. 1989)

[4] 
  Complainant's request for reconsideration appears to be
primarily based upon a Notice of Violation to Respondent from the
Nuclear Regulatory Commission in December of 1986.  This notice,
which does in fact cite discriminatory treatment against
Complainant Norman, was not in existence at the time of the ALJ's
decision in this case.  As such, it is not a proper subject for
my review.  29 C.F.R. § 24.6(b).