DATE: March 23, 1990
CASE NO. 88-ERA-42

IN THE MATTER OF

ROGERS DAY,
    COMPLAINANT,

    v.

GEORGIA POWER COMPANY,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    Administrative Law Judge (ALJ) C. Richard Avery submitted a Recommended Decision and Order (R.D. and O.) to the Secretary on June 23, 1989, in the above-captioned case arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1982). The case is now before me for review. 29 C.F.R. § 24.6 (1989). The ALJ has recommended that this complaint be dismissed as not timely filed under 29 C.F.R. § 24.3(b) and, further, because the record establishes that Complainant was terminated for absenteeism and not in retaliation for a protected activity. In an order Establishing Briefing Schedule issued August 3, 1989, the parties were given an opportunity to submit briefs in support of or in opposition to the ALJ's R.D. and O. The Respondent filed a brief

in support of the ALJ's R.D. and O. and incorporated by reference its post-hearing brief which was submitted before the ALJ. In that brief Respondent argues that the complaint should be dismissed because the Complainant failed to satisfy the time requirement provided at 42 U.S.C. § 5851(b)(1) and 29 C.F.R. § 24.3(b). Respondent also contends that the Complainant failed to demonstrate the requisite elements of a prima facie case. Complainant did not file a post-hearing brief, R.D. and O. at 2 n.1., nor respond to my order.

    Based on a review of the record in this case, I adopt and append the ALJ's discussion and reasoning in his ruling on the issue of timeliness.¹ The record fully supports the ALJ's findings of fact and conclusions on that issue,² and I note that his analysis is consistent with case law and prior decisions of the Secretary which discuss timeliness and tolling. See School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981); Doyle v. Alabama Power Co., Case No. 87-ERA-43, Sec. Final Decision and Order, September 29, 19891 slip op. at 2-6; Lastre v. Veterans Administration Lakeside Medical Center, Case No. 87-ERA-42, Sec. Final Decision and Order, March 31, 1988.

    Accordingly, the complaint in the case is dismissed.

    SO ORDERED.

       ELIZABETH DOLE
       Secretary of Labor

Washington, D.C.

¹Although there is a handwritten complaint in the record bearing the date August 12, 1988, which Complainant contends was originally submitted around January 26, 1988, ALJ Ex. 5; CX-14, the ALJ was not persuaded by Complainant's assertions that he filed this complaint in January and the record supports the ALJ's analysis and credibility determinations. Thus, I conclude that the ALJ correctly chose not to credit this complaint as evidence of a timely filing with the Department of Labor (DOL).

²Inasmuch as this complaint is dismissed on the grounds of untimeliness under 42 U.S.C. § 5851(b)(1), the merits of Complainant's case need not be considered and the ALJ's recommendations on the merits are not addressed herein.