DATE: July 18, 1990
CASE NO. 89-ERA-49

IN THE MATTER OF

M. DAVID RIDEN,
    PLAINTIFF,

    v.

TENNESSEE VALLEY AUTHORITY,
    DEFENDANT.

BEFORE: THE SECRETARY OF LABOR

    Before me for review is the Recommended Decision and order (R.D. and O.) of Administrative Law Judge (ALJ) Robert L. Hillyard, issued on February 9, 1990, in the captioned case which arises under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. SS 5851 (1982). In an Order Establishing Briefing schedule, issued March 16, 1990, and an order Granting Extension of Time, issued April 20, 1990, the parties were given an opportunity to submit briefs in support of or in opposition to the ALJ's R.D. and O. Both parties have filed briefs before the Secretary.

    Complainant, proceeding pro se, filed a complaint on July 11, 1989, alleging unlawful termination from employment by the Tennessee Valley Authority (TVA), and also challenging his nonselection for two TVA Vacancy Position Announcements (VPA) which were posted during Complainant's reduction in force notice period. The ALJ has recommended that the complaint be dismissed as not timely filed under 29 C.F.R. § 24.3(b) and, further, because Complainant failed to establish a prima facie case of discrimination.

    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 with respect to the Complainant's allegations about his termination and his nonselection for the job identified

as VPA No. NPM-471. The record fully supports the ALJ's findings of fact and conclusions of law as to these allegations. Moreover, the ALJ's analysis is consistent with the case law and prior decisions of the Secretary on the issue of timeliness and equitable tolling. See English v. General Electric Company, Case No. 85-ERA-2, Dep. Sec. Final Decision and Order, January 13, 1987, slip op. at 4-11, aff'd sub nom., English v. Whitfield, 858 F.2d 957 (4th Cir. 1988); School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981); McGough v. U.S. Navy, ROICC, Case No. 86-ERA-18, Sec. Remand Decision and Order, June 30, 1988, slip op. at 6-7; Nunn v. Duke Power Company, Case No. 84-ERA-27, Sec. Decision and order of Remand, July 30, 1987, slip op. at 14-16. Consequently, I accept the ALJ's recommendation that these allegations of Complainant's complaint be dismissed as untimely.¹

    Complainant raises an additional allegation, however, concerning his nonselection for a position identified as VPA No. 9652907 (or SC-4 job). The record is unclear as to whether this allegation is time barred. The vacancy in question was posted on may 15, 1989, with a deadline of May 23, 1989, and Complainant stated during May that he was not interested in applying for this nonmanagement position. A selection was made on June 8, 1989, but final approval was withheld until June 16, 1989. The position was offered and accepted on June 19, 1989. Complainant submitted an application for the position on June 15, 1989, which was apparently given some consideration, see Transcript (Tr.) at 341, 346-7, 350, and it is not clear on the record when Complainant was notified of his nonselection for this position.² Consequently, I will address the merits of this allegation.

    In his R.D. and O., the ALJ further considered the merits of all three claims raised by Complainant in this case. The ALJ'S conclusion that Complainant failed to establish a prima facie case of discrimination is supported by the record and is in accordance with the case law. See generally Dartey v. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Decision and Final Order, April 25, 1983. Complainant has failed to establish a prima facie case by his failure to allege or present evidence sufficient to raise the inference that his nonselection to VPA No. 9652907 was in retaliation for any protected activity.³ In Complainant's own deposition testimony, he concedes a lack of discriminatory motive by the selecting managers involved in filling this position. Tr. at 516-520. Additionally, the ALJ

correctly found that Respondent, "had valid reasons and took its actions in good faith based on business purposes and selected the best qualified person for the position." R.D. and O. at p.9. Consequently, I adopt the ALJ's conclusion that Complainant failed to carry his burden of proof to establish discrimination under the ERA.⁴

    Accordingly, the complaint is DISMISSED.

    SO ORDERED.

       Elizabeth Dole
       Secretary of Labor

Washington, D.C.

¹ Inasmuch as these allegations are time barred pursuant to 42 U.S.C. § 5851(b)(1) and 29 C.F.R. § 24.3(b), the merits of these claims need not be considered herein.

²It is noted that in the Brief in Support of the Recommended Decision and order, TVA concedes that Complainant did not learn of his nonselection for VPA No. 9652907 until June 16, 1989.

³Although a pro se Complainant cannot be held to the same standard for pleadings as if he were represented by legal counsel, Complainant must allege a set of facts which, if proven, could support his claim of entitlement to relief.

⁴As this holding disposes of Complainant's final allegation, it is not necessary to address any other issues raised in this case.