APR 20 1992
CASE NO. 91-ERA-23

In the Matter of

OGDEN L. BALLENTINE,
    Complainant

    v.

TENNESSEE VALLEY AUTHORITY,
    Respondent

Appearances:

DONALD MART LASLEY, Esquire
    For Complainant

JUSTIN M. SCHWANN, SR., Esquire
    For Respondent

Before: LAWRENCE E. GRAY
    Administrative Law Judge

   The Complainant in this matter alleges violations of the employee protection provisions at Section 210 of the Energy Reorganization Act of 1979 as amended, 42 U.S.C. § 5851 (1982) ("ERA") and the implementing regulations set forth at 29 C.F.R.

Part 24. The Act is designed to protect employees against discrimination and retaliation for attempting to effectuate the purposes of the Atomic Energy Act, as amended, 42 U.S.C. 2011 et seq. Without hearing, Respondent has moved for dismissal or, alternatively, summary judgment, on the grounds that the complaint was untimely filed.

   On May 17, 1990, Complainant received a Notice of Termination effective June 17, 1990; the reason for the termination was stated as Complainant's color blindness, which rendered him medically ineligible for his job as a security lieutenant. On Monday, June 18, 1990, Complainant was told by Respondent's EEO counselor that his termination date was being extended until June 25, 1990; the notice was in the form of a telephone call to Complainant's home. Complainant met with supervisory personnel on Wednesday, June 20, 1990 regarding his termination. On Friday, June 22, 1990, Complainant was again informed by his direct supervisor, the manager of nuclear site security for Respondent, and one of the participants in the meeting of Wednesday, June 22, 1990, that his termination was effective Monday, June 25, 1990. The complaint was filed on July 24, 1990.

   The ERA and the implementing regulations require that complaints be filed within thirty days after an alleged violation occurs. Decisions of the Secretary and the courts have held uniformly that the time for filing a complaint begins to run on the day that the Complainant is informed of the challenged employment decision. It is uncontroverted that Complainant received a Notice of Termination on May 17, 1990. Using that date, Complainant's filing a complaint on July 24, 1990 is untimely. Even if the extension of June 18, 1990, the meeting of June 20, 1990, or the June 22,- 1990 telephone call from the manager of nuclear site security were to be considered as having supplanted the May 17, 1990 Notice of Termination, the filing of the complaint on July 24, 1990 would still be untimely. The only basis for finding the filing to be timely would require acceptance of Complainant's subjective assessment that, because he really didn't believe what he had been told on any earlier

date, the alleged violation did not occur until he was out the door. Not only is this totally at odds with all of the case law, but looked at in isolation it requires straining logic past the breaking point. The process here is legal, not psychiatric, and the gloss that the Complainant would place on the facts based on his own prior experiences, his attitudes and his beliefs, cannot change the law.

   I find that the complaint was not timely filed and I recommend, accordingly, that it be dismissed.

       LAWRENCE E. GRAY
       Administrative Law Judge