DATE ISSUED: November 29, 1990

CASE NO: 90-ERA-52

IN THE MATTER OF

WILLIE L. GRIZZARD,
    Complainant,

    v.

TENNESSEE VALLEY AUTHORITY,
    Respondent.

APPEARANCES (On Brief):

Willie L. Grizzard, pro se
    For the complainant

Justin M. Schwann, Esquire
Thomas F. Fine, Esquire
Thomas A. Robins, Esquire
    For the respondent

BEFORE: Donald W. Mosser
    Administrative Law Judge

   This matter arises under the Energy Reorganization Act [ERA], 42 U.S.C. § 5851. The regulations promulgated at 29 C.F.R. Parts 18 and 24 also are applicable to this proceeding.

   Willie L. Grizzard filed a complaint under the employee protection provisions of ERA and Part 24 of the regulations on October 17, 1989. An acting district director of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, advised the complainant by determination letter dated June 15, 1990 that the complaint was not timely and therefore could not be investigated. By telegram dated June 23, 1990, Mr. Grizzard requested a hearing before the Office of Administrative Law Judges.

   This matter was scheduled for hearing on August 2, 1990, at Birmingham, Alabama. However, the hearing was continued generally after Tennessee Valley Authority [TVA] filed a motion for summary judgment and the complainant waived the time constraints of ERA in order to be given additional time to file a response to that motion. The complainant was allowed a reasonable period of time to file a response, including affidavits and documentary evidence, to TVA's motion for summary judgment and to show cause why his appeal of the determination letter should not be dismissed as untimely. The complainant filed his response on September 17, 1990. TVA filed a reply to that response on September 26, 1990. Mr. Grizzard filed a further response on September 28, 1990.

1. Whether complainant timely appealed the denial of his complaint; and,

2. Whether Willie Grizzard filed a timely complaint under ERA.

   The following findings of fact are based solely on the complaint of Willie L. Grizzard dated October 17, 1989, the determination letter of the acting district director dated June 15, 1990, the motion for summary judgment of TVA with attachments, Mr. Grizzard's response with attachments to the motion for summary judgment, TVA's reply with attachments to Mr. Grizzard's response and, finally, complainant's letter dated September 28, 1990.

   1. Complainant, Willie L. Grizzard, filed safety concerns with the Nuclear Regulatory Commission regarding TVA in 1985 and 1988.

   2. Complainant was terminated from his Engineering Associate position with TVA on August 1, 1987.

   3. As a result of his termination by TVA, Mr. Grizzard filed a complaint with the Equal Employment Opportunity Commission [EEOC] under 42 U.S.C. § 2000(e)-16. A recommended decision regarding that complaint was issued by an administrative law judge of EEOC on May 30, 1990. That decision was adopted by the manager of that commission on August 24, 1990.

   4. Mr. Grizzard testified at a hearing on July 6, 1989 before an administrative law judge of the U.S. Department of Labor in the case of James L. Steele v. Tennessee Valley Authority, Case No. 89-ERA-24, which involved a complaint under ERA.

   5. On October 17, 1990, Willie L. Grizzard filed the complaint involved in this proceeding. He explains therein that his reason for filing the complaint are: (1) that TVA has not complied with the decision rendered regarding his complaint with EEOC; (2) that he was informed by an official of TVA on October 12, 1989, that TVA planned to do nothing about implementing that decision; (3) that he is "getting the run-around from" TVA because he testified in Case Number 89-ERA-24; and; (4) that numerous safety concerns and violations that he raised with the Nuclear Regulatory Commission were neither addressed nor processed.

   6. An acting district director of the Wage and Hour Division Employment Standards Division, United States Department of Labor, advised Mr. Grizzard by letter dated June 15, 1990 that:

Section 210(b)(1) Of ERA allows an employee 30 days in which to file a complaint involving prohibited discrimination. Your complaint, dated October 17, 1989 was received in our Nashville Office October 30, 1989. In a phone conversation we had you indicated that you were a result of that termination. You also indicated you testified in a Department of Labor hearing on behalf of Mr. James L. Steele. As both of these actions occured [sic] more than 30 days before October 17, 1989, we find the complaint is not timely under the 30-day time limitation or Section 210 of ERA.

   7. Mr. Grizzard did not receive the determination letter dated June 15, 1990 until June 19, 1990 because it was mailed to his old address. He requested a hearing regarding that letter by telegram dated Saturday, June 23, 1990. His telegram was received by the Office of Administrative Law Judges on Monday, June 25, 1990.

Timeliness of Appeal

   It is provided in 29 C.F.R. § 24.4 (d)(2)(i) that a notice of determination under ERA shall become the final order of the Secretary of Labor denying a complaint unless within five calendar days of its receipt the complainant files "a request by telegram for a hearing on the complaint." The letter of determination involved in this proceeding was mailed to Willie Grizzard on June 15, 1990 but he did not receive it until June 19, 1990. Since he requested a hearing on the complaint by telegram on June 23, 1990, he filed that request within five calendar days of the receipt of the determination letter. Although the telegram was not received by the Office of Administrative Law Judges until Monday, June 25, 1990, which is six days beyond receipt of the determination letter, the request must be considered timely. See 29 C.F.R. § 18.4; Sawyers v. Baldwin Free School District, 85 TSC 1, 2 OAA 5, pg. 159 (Sec. Decision October 5, 1988).

Timeliness of the Complaint

   Section 5851(a) of ERA provides that:

No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or person acting pursuant to a request of the employee)

(1) commenced, cause to be commenced, or is about to commence or cause to be commenced a proceeding under this Act . . . or a proceeding for the administration or enforcement of any requirement imposed under this Act . . .;

(2) testify or is about to testify in any such proceeding or;

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this Act.

That section goes on to provide in subsection (b) "[a]ny employee who believes he has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, within 30 days after such violation occurs, file a complaint with the Secretary of Labor alleging such discharge or discrimination."

   TVA argues in its brief in support of its motion for summary judgment that it appears the complainant is attempting to raise as issues (1) his termination on August 1, 1987; (2) his testimony on July 6, 1989 in another ERA case; and, (3) his Equal Employment Opportunity complaint against TVA. If so, it initially maintains that Mr. Grizzard's complaint is untimely because it was not filed within 30 days of his termination by TVA. Secondly, it argues that Mr. Grizzard's testimony at another ERA hearing on July 6, 1989, nearly two years after he was terminated, cannot be the basis for a claim of discrimination. TVA finally contends that Mr. Grizzard's complaint with EEOC is outside the scope of this proceeding. TVA therefore moves for a summary judgment on the grounds that Mr. Grizzard's complaint is untimely and is not within the purview of ERA.

   In response to TVA's motion for summary judgment, Mr. Grizzard acknowledges that his complaint was not filed to have me intervene in affairs outside the scope of ERA. Rather, it appears he is contending that he was harassed, intimidated and discriminated against relative to his efforts to have TVA address certain safety concerns. He points out that the same quality assurance managers of TVA "at that time, are still, to the best of my knowledge and belief, in place." He goes on to reiterate that he is filing to address the issue that he has been victimized due to his efforts to address and correct legitimate "nuclear plant safety concerns." In a document entitled Chronological List of Events, Due to My Filing of Legitimate Nuclear Plant Concerns, Mr. Grizzard lists and discusses events that allegedly took place between December 20, 1985 and his testimony in another ERA case

in July of 1989.

   TVA argues in its reply to Mr. Grizzard's response that the complainant has failed to address any of the arguments raised in TVA's motion for summary judgment. It contends whatever merit Mr. Grizzard's claims may have had regarding his termination from TVA and his testimony on July 6, 1989, such claims are "time barred." It finally states that it is unclear why the complainant is pursuing this matter since he is to be reinstated to his position in view of the final order of the Equal Employment Opportunity Commission.

   Mr. Grizzard finally contends in his most recent letter that TVA has failed to implement the EEOC decision as of this date. He also states that no plans have been developed to satisfactorily resolve his safety concerns and the safety concerns addressed in the ERA case involving Mr. Steele. He therefore requests a 90-day continuance "in order to allow the agency ample time to fully implement its decision and make needed corrective action regarding safety concerns." He states that if a good faith effort is made to resolve his case and the case of Mr. Steele, he will consider making a written request for a withdrawal of his complaint.

   A summary decision is appropriate where there is no genuine issue as to any material fact. 29 C.F.R. § 18.41(a); Fed. R. Civ. P. 56. A party opposing a motion for summary decision may not rest on mere allegations or denials. Rather, a response to such motion must set forth specific facts establishing there is a genuine issue of fact for a hearing. 29 C.F.R. § 18.40(c); Fed. R. Civ. P. 56(e).

   Based on a review of the pleadings and documentation submitted in support thereof, I find that no genuine issue of material fact exists in this case on which relief could be granted under ERA. There is no question that the safety concerns mentioned by the complainant relate to matters apparently raised by him in 1985 and 1988 with the Nuclear Regulatory Commission and clearly are beyond the scope of this proceeding. Likewise, his complaint with EEOC clearly is beyond the purview of this case.

   Neither party disputes that Mr. Grizzard was terminated by TVA on August 1, 1987. Obviously, the time limitation for filing a complaint under ERA regarding that discharge expired well

before the filing of Mr. Grizzard's complaint on October 17, 1989. 42 U.S.C. § 5851(b). I recognize that under very limited circumstances the time limitations of ERA may be equitably tolled but the complainant has not argued that such provisions are applicable. See School District of The City of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 81); Wright v. State of Tennessee, 628 F.2d 949 (6th Cir. 1980). I also acknowledge that continuing acts of discrimination may suspend the running of the time limitations but again the complainant has not specifically alleged continuing acts of discrimination by TVA. See Delaware State College v. Ricks, 449 U.S. 250 (1980); Nunn v. Duke Power Co., 84 ERA 27, 1 OAA 4, pg. 261 (Sec. of Labor, July 30, 1987).

   Finally, there is no question that Mr. Grizzard testified in another ERA case some seventy days prior to the filing of his complaint. He was not an employee of TVA at that time but such factor would not automatically preclude an ERA action. See Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir. 1977); see generally Hill v. Tennessee Valley Authority, 87 ERA 23 (Sec. of Labor, May 24, 1989). However, the complainant has not specifically alleged that TVA discriminated against him within 30 days of the filing of his complaint because of his testifying at that proceeding. Rather, it appears the complainant is solely concerned with TVA's handling of the safety concerns which he raised years ago and the company's actions concerning his EEO complaint, both of which are beyond the scope of this ERA proceeding.

   In conclusion, the complainant has not shown in response to TVA's motion for summary judgment that a genuine issue of fact exists in this controversy for which relief could be granted. Therefore, complainant's motion for a further continuance is denied. It is recommended that TVA's motion for summary judgment be granted and that the Secretary of Labor deny the complaint of Willie L. Grizzard dated October 17, 1989.

   It is hereby recommended in accordance with 29 C.F.R. § 24.6 that the motion for summary judgment of TVA be granted and the complaint of Willie L. Grizzard dated October 17, 1989 be dismissed.

       DONALD W. MOSSER
       ADMINISTRATIVE LAW JUDGE