DATE: September 26, 1991
CASE NO. 90-ERA-52

IN THE MATTER OF

WILLIE L. GRIZZARD,
    COMPLAINANT,

    v.

TENNESSEE VALLEY AUTHORITY,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   Before me for review is the Recommended Decision and Order (R.D. & O.) of the Administrative Law Judge (ALJ) issued on November 29, 1990, 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 R.D. & O. recommends that the Motion for Summary Judgment, filed by Respondent prior to the hearing, should be granted and the case should be dismissed. The ALJ found that no genuine issue of material fact existed on which relief could be granted, because the complaint was untimely with respect to Complainant's allegations of retaliatory acts through July of 1989, namely Complainant's termination on August 1, 1987, and Complainant did

not present any circumstances for equitable tolling. Moreover, the ALJ concluded that Complainant's allegations regarding denial and delay of his Equal Employment Opportunity Commission (EEOC) relief were outside the scope of this ERA proceeding. Both parties were given an opportunity to file briefs before the secretary, but only the Respondent did.

   Based on a review of the record before me, I conclude that this case must be remanded for further consideration of Complainant's allegations that TVA has delayed implementation of a March 1989, EEOC order issued in his favor, regarding reprisal actions in retaliation for his protected activity of participating in an ERA proceeding in July of 1989. Complainant's allegation is that TVA has withheld a condition or privilege of his employment his EEO relief -- because he participated in an ERA proceeding. This allegation fits within the statute's prohibition of discrimination based on an employee's participation in an ERA proceeding.¹ See 42 U.S.C. § 5851 (prohibiting employer from discriminating against an employee "with respect to his . . . conditions, or privileges of employment because the employee . . . testified or is about to testify in a proceeding under this chapter.") Accordingly, contrary to the ALJ's conclusion, this specific allegation is not beyond the purview of the ERA, and the timeliness of this particular claim should be considered by the ALJ.² A final EEOC decision was issued in August 1990, concerning Complainant's August 1987 discharge. TVA was directed to reinstate Complainant with full back pay. On remand, the ALJ is instructed to consider whether Complainant's additional allegations that TVA has delayed implementation of the EEOC's ordered relief of August 1990, can be regarded as an amendment of his October 1989 complaint.

   I recognize, however, that the allegations of retaliatory delay in implementing the ordered EEOC relief may be moot. TVA may have complied with the agency's August 24, 1990, decision on Complainant's EEO complaint, and it appears that implementation of the decision may be the only relief that Complainant seeks with respect to the claim of retaliatory delay. See Complainant's September 28, 1990 response, filed with the ALJ on October 12, 1990. Consequently, on remand, the ALJ should first inquire of the parties whether this claim is moot, and then if necessary, consider whether the claim is timely.

   In all other respects, I accept the ALJ's recommended decision, as briefly discussed herein. With respect to the ALJ's

ruling that Complainant timely requested a hearing, I conclude that the ALJ's "Findings of Fact" accurately reflect the undisputed facts and that his conclusions of law are sound.³ The ALJ correctly found that Complainant received his notice of determination on June 19, 1990, and that Complainant's June 23, 1990, telegram requesting a hearing, was timely pursuant to the pertinent regulations, because the last day to file fell on a Sunday. See 29 C.F.R. § 24.4(d)(2)(i); 29 C.F.R. § 18.4(a); Sawyer v. Baldwin Union Free School District, Case No. 85-TSC-1, Sec. Dec. and Order of Remand, Oct. 5, 1988, slip op. at 5.

   Additionally, the ALJ correctly concluded that the complaint was untimely with respect to Complainant's allegations concerning his termination, as well as any other general allegations of discriminatory acts occurring outside the thirty day period preceding the filing of his complaint. In addressing the timeliness of the complaint and whether a summary decision would be appropriate, the ALJ noted all arguments raised by Complainant and Respondent in their submissions before him. I note that Complainant proceeded pro se before the ALJ.⁴

   Pursuant to the pertinent provisions of the Act and its implementing regulations, which explicitly provide that a complaint shall be filed within thirty days of the alleged violation, 42 U.S.C. § 5851(b)(1); 29 C.F.R. § 24.3(b), the instant complaint must be dismissed to the extent that Complainant alleged violations of the Act which occurred outside of the thirty day filing period preceding the complaint of October 17, 1989. Moreover, Complainant has not argued that equitable tolling is warranted as to any time- barred allegation, and consequently, the ALJ's reasoning and conclusions on the issue of timeliness and equitable tolling are in accordance with the applicable case law and the prior decisions of the Secretary. See generally School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981); Riden v. TVA, Case No. 89-ERA-49, Sec. Final Dec. and Order, July 18, 1990, slip op. at 1-3; Billings v. TVA, Case No. 86-ERA-38, Sec. Final Dec. and Order of Dismissal, June 28, 1990, slip op. at 8-10, aff'd sub nom. Billings v. Dole, Case No. 90-3633 (6th Cir. Jan. 25, 1991) (LEXIS, Gen fed library, Current); Doyle v. Alabama Power Co., Case No. 87-ERA-43, Sec. Final Dec. and Order, Sept. 29, 1989, slip op. at 2-31 appeal docketed, No. 89-7863 (11th Cir. Nov. 28, 1989).

   Finally, the ALJ's analysis and conclusion that Respondent's motion for summary judgment should be granted, is in accordance

¹The Secretary has held that a former employee, such as the instant Complainant, is protected under the ERA. Doyle v. Bartlett Nuclear Services, Case No. 89-ERA-18, Sec. Dec. and Order of Dismissal, May 22, 1990, slip op. at 3; Cowan v. Bechtel Construction, Inc., Case No. 87-ERA-29, Sec Dec. and Order, August 9, 1989, slip op. at 2-4.

²In addressing this claim, I am mindful of the principle that one agency's determinations should not unnecessarily "trench upon" the jurisdiction of another. Cf. New York Shipping Association v. FMC, 854 F.2d 1338, 1377 (D.C. Cir. 1988), cert. denied, 488 U.S. 1041 (1989). The question posed in this case at this time, however, is whether Complainant has stated a claim under the ERA and whether it is timely. Potential questions about how the handling of this ERA claim interrelates with EEOC's authority, should be addressed as they arise.

³In the ALJ's "Findings of Fact." I note the following typographical error in Finding No. 5: the complaint was filed on October 17, 1989, not 1990. R.D. & O. at 2. The correct date of filing is indicated elsewhere in the R.D. & O.

⁴Although 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.