DATE:  February 9, 1994
CASE NO. 89-ERA-00021


IN THE MATTER OF

DONALD E. HADDEN

          PLAINTIFF,

     v.

GEORGIA POWER COMPANY

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     The Administrative Law Judge (ALJ) submitted a Recommended
Decision and Order (R. D. and O.) in this case arising under the
employee protection provision of the Energy Reorganization Act of
1974, as amended (ERA), 42 U.S.C. § 5851 (1988),
recommending that the complaint be dismissed as untimely.  R. D.
and O. at 12.  In addition, the ALJ found that even if the
complaint were considered timely, Complainant did not carry his
burden of proving that Complainant's protected activities
motivated Respondent's decision to bar him permanently from
employment.  Id.  I agree with the ALJ that the complaint
here was untimely.
     The facts are well summarized in the R. D. and O, at pp. 
2-5.  Briefly, Complainant began work in 1984 as a sheetmetal
worker for one of Respondent's contractors, Pullman Kenith-
Fortson (PKF), in the construction of Plant Vogtle, a nuclear
power plant in Augusta, Georgia.  Id. at 2.  Complainant
was fired on Feb. 12, 1986 and filed an ERA complaint on that
adverse action.  That complaint was settled and Complainant was
rehired on May 21, 1986, but PKF discharged him again on June 3,
1986 for being "[o]ut of work area disrupting others from their
work."  Termination Notice, Complainant's Exhibit (C) - 6.  The 
[PAGE 2]
Termination Notice stated Complainant was not eligible for
rehire.  Id.
     Complainant testified that it was not clear to him, until
December 1988, the length of time for which he was barred from
employment with Respondent and its contractors, and whether he
was ineligible for re-employment only with PKF or with Respondent
and all of its contractors.  R. D. and O. at 4.  Complainant
filed two complaints under the ERA challenging the permanent bar
to his reemployment, [1]  one on December 20, 1988 and one on
January 5, 1989. [2]   The ALJ rejected Complainant's argument
that permanently barring Complainant from employment constitutes
the continuing violation of blacklisting, R. D. and O. at 9.  In
addition, the ALJ held that Complainant had notice of permanent
ineligibility for rehire at least by November of 1986, more than
two years before he filed a complaint under the ERA, and
recommended that the Secretary dismiss the complaint as untimely. 
Id. at 11-12.
                                DISCUSSION
     Complainant excepts to the ALJ's conclusion that the
complaint was untimely on the grounds that the ALJ applied the
wrong legal standard.  The ALJ held the thirty day period within
which to file a complaint under the ERA, 42 U.S.C. 
§ 5851(b)1), [3]  begins to run when Complainant received
"definite notice of the challenged employment decision," that is,
permanently barring Complainant from employment with Respondent. 
Complainant argues the time only begins to run when the employee
receives final and unequivocal notice of the challenged adverse
action.  There is no dispute that Complainant did not receive a
copy of a letter from Respondent to Complainant's union, stating
that he was permanently barred, until December of 1988.
Complainant asserts the thirty days did not begin to run until
that time and therefore his complaint was timely.
     I reject Complainant's proffered interpretation of the Act.  
Complainant equates notice with written notice, citing
Delaware State College v. Ricks, 449 U.S. 250 (1980), but
nothing in the ERA or Ricks supports that interpretation. 
Cf. Mull v. Arco Durethene Plastics, Inc., 784 F.2d
284, 288 (7th Cir. 1986) ("[U]nder Ricks . . . unequivocal
notice . . . is all that is required to start the limitations
period running; it is not necessary for such notice to be in
writing."); Miller v. International Tel. & Tel. Corp., 755
F.2d 20, 24 (2d Cir. 1985), cert. denied, 474 U.S. 851
(oral notice of discharge triggers running of statute of
limitations).
     Complainant quibbles with the ALJ's formulation that an
employee must receive "definite notice" to trigger the statute.
He insists that the proper legal standard is "final and
unequivocal notice," citing English v. Whitfield, 858 F.2d
957, 
[PAGE 3]
961 (4th Cir. 1988).  But in English v. Whitfield, [4]  
the Fourth Circuit used "definite notice" and "final and
unequivocal notice" interchangeably.  Compare section II A
(1) with section II A (2), id. at 961.
     Complainant testified the scope and length of the "bar" to
his reemployment were not clear to him.  He was not sure whether
the bar from reemployment applied only to PKF or to Georgia Power
and all of its contractors, and whether the bar applied for 90
days or one year.  See, e.g., T. (Transcript of
Hearing) 77; 115-17; 138-40.  Complainant does not dispute that
he received the Termination Notice, C-6, which stated he was not
eligible for rehire, or that both union and management
representatives told him he was barred from the Plant Vogtle work
site.  T. 116; 138 (union steward told Complainant he was not
allowed on Plant Vogtle site when Complainant was referred for
work by union); T. 117 (Claude Janecke, Coordinator of the Quality Concerns
Program, told Complainant that Charles Whitney, Executive
Assistant to President of Georgia Power, decided to bar
Complainant; Whitney confirmed this when Complainant contacted
him).
     In addition, Mr. Janecke testified that he told Complainant
three times, on October 1, October 6, and November 4, 1986, 
Complainant was permanently barred from work for Georgia Power. 
T. 350, 352, 353. [5]   No one connected with Georgia Power ever
told Complainant there was a time limit on his ineligibility for
rehire, T. 117-18; he based his assumptions about its length on
what he was told by the union business agent and his knowledge of
other employees who had been disciplined.  T. 115-16. [6] 
     I agree with the ALJ, therefore, that Complainant had notice
sufficient to trigger the 30 day time limit for filing an ERA
complaint at least by November of 1986.  Even if there were some
ambiguity about the length of time he was ineligible for rehire,
Complainant knew an adverse action, in addition to the discharge,
had been taken against him.  As the court held in Pacheco v.
Rice, 966 F.2d 904, 907 (5th Cir. 1992), 
     [i]t is to be expected that some relevant facts will come to
     light after the date of [an adverse action] -- one purpose
     of filing an administrative complaint is to uncover them. .
     . .  The requirement of diligent inquiry imposes an
     affirmative duty on the potential plaintiff to proceed with
     a reasonable investigation in response to an adverse event.

Complainant made no effort to learn the length of the employment
bar until, over two years later, he sought employment with
another employer in the nuclear industry.
     Complainant argues that placing him on a permanent bar list
is equivalent to blacklisting which constitutes a continuing 
[PAGE 4]
course of discriminatory conduct.  Respondent should be held
liable for the entire course of that conduct, Complainant
asserts, because Complainant filed a complaint within thirty days
of the last act in that course of conduct.  I do not agree and I
concur with the ALJ that the decision of an employer not to
rehire its own former employee is not a continuing violation. 
     In Delaware State College v. Ricks, the Court held a
faculty member denied tenure and given a one year terminal
contract must file his Title VII complaint within 180 days of the
date he was notified of the denial of tenure and could not wait
until his employment terminated.  To use the industrial
terminology of this case, the employee was permanently barred
from employment on the college faculty.  The Supreme Court held
that "the only alleged discrimination occurred - and the filing
limitations periods therefore commenced - at the time the tenure
decision was made and communicated to Ricks."  449 U.S. at 258. 
As discussed above, Respondent notified Complainant of his
ineligibility for rehire on June 3, 1986.
     In a case squarely raising the question whether repeated
denials of reemployment constitute a continuing violation, the
court held in Mitilinakis v. Chicago, 735 F. Supp. 839
(N.D. Ill. 1990), they do not.  A woman denied reinstatement
after maternity leave claimed the discrimination was continuing
because a discriminatory act occurred each time she later
requested and was denied reinstatement.  The court held that
argument 
     confuses the continuing effects of the initial denial of
     reinstatement . . . with a 'continuing violation.'. . . 
     [P]laintiff cannot extend the limitations period by
     repeatedly renewing her demand for reinstatement and then
     counting her time to file from each denial.  To allow such a
     strategy to revive expired or stale claims would render the
     filing time periods in Title VII [of the Civil Rights Act of
     1964] a nullity.

Id. at 841.
     Accordingly, the complaint in this case is DISMISSED as
untimely. [7] 
     SO ORDERED.



                                   ROBERT B. REICH
                                   Secretary of Labor
Washington, D.C.



[ENDNOTES]
              
[1]   Complainant did not challenge the decision to discharge him
on June 3, 1986.  R. D. and O. at 7-8.

[2]   The ALJ noted that the Dec. 20, 1988 complaint was not
signed and had no markings indicating it had been received in the
Department of Labor.  For the reasons discussed below, the
difference in time between the Dec. 20, 1988 complaint and the
Jan. 5, 1989 complaint has no effect on the outcome of this case.

[3]   The ERA was amended in 1992, among other things, to
increase the time for filing a complaint to 180 days. 
Comprehensive National Energy Policy Act, Pub. L. No. 102-486,
§ 211(b)(1), 111 Stat. 2776 (1992).

[4]   In English v. Whitfield the court upheld the
Secretary's decision in another ERA case that a complaint was
untimely when it was filed within 30 days of an employee's last
day on the payroll but well beyond 30 days from the date she was
notified she would be laid off.  858 F.2d at 961.

[5]   Complainant urges me not to give significant weight to the
ALJ's findings on the relative credibility of Mr. Janecke and
Complainant on whether Mr. Janecke explicitly told Complainant
several times he was permanently barred.  The record supports the
ALJ's credibility determinations and I am not persuaded I should
alter them.  Even if there were some miscommunication between Mr.
Janecke and Complainant, Complainant cannot dispute the fact that
he knew he had been barred for some significant period of time
and therefore he had a duty, as discussed below, to investigate
and promptly file a complaint.

[6]   Complainant testified the union business agent told him the
penalty for the offense of being out of one's work area was being
barred from employment by PKF and a 90 day suspension from the
Plant Vogtle work site.  It was unreasonable for Complainant to
assume this limited penalty applied to him because his
Termination Notice listed additional grounds for discharge,
"disrupting others from their work," and "[v]iolation of
agreement signed May 21, 1986."

[7]   In view of my adoption of the ALJ's conclusion that the
complaint here is untimely, I need not address other issues
discussed in the R. D. and O.