DATE:   July 8, 1992
CASE NO.  91-ERA-14

IN THE MATTER OF

WILLIAM R. GORE,

          COMPLAINANT,

     v.

CDI CORPORATION and CAROLINA
POWER AND LIGHT COMPANY,

          RESPONDENTS.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the Recommended Order of Dismissal
(R.D. and O.) of the Administrative Law Judge (ALJ) in this case
which arises under Section 210 of the Energy Reorganization Act
of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988).  The ALJ
recommends that the complaint be dismissed under Rule 41(b) of
the Federal Rules of Civil Procedure for failure of the
Complainant to prosecute or to comply with his order.  In
addition, the ALJ recommends dismissal under 29 C.F.R. §
18.40 on the basis that there is no genuine issue as to a
material fact and Complainant is entitled to a summary decision
because the complaint is time barred. 
     In June 1988, Complainant was laid off from his position
with Respondent CDI Corporation (CDI), a contractor to respondent
Carolina Power and Light Company (CP&L) at one of its nuclear
power plants.  The layoff was part of a general reduction in
force.  In November 1990, Complainant filed a complaint with the
Department of Labor alleging that he was laid off so that a CP&L
supervisor could retain a CDI employee to whom the supervisor
allegedly was related.  Complainant also alleged that CP&L had
blacklisted him from reemployment because of quality concerns 
[PAGE 2]
that Complainant expressed at his 1988 exit interview.
     Upon a thorough review of the record in this case, I agree
with the ALJ that the complaint should be dismissed, although on
the issue of failure to prosecute, I rely upon a different rule. 
     The record substantiates that despite the grant of
additional time, Complainant did not comply with the ALJ's order
to respond to Respondents' motions for a protective order and for
summary decision.  Under the regulations governing hearings
before the Department's administrative law judges, the Federal
Rules of Civil Procedure apply in a situation "not provided for
or controlled by these rules, or by any statute, executive order
or regulation."  18 C.F.R. § 18.1(a) (1991).  The
regulations governing a hearing in a "whistleblower" case under
the ERA contain a provision authorizing an ALJ to dismiss a claim
"upon the failure of the complainant to comply with a lawful
order of the administrative law judge."  29 C.F.R. §
24.5(e)(4)(i)(B) (1991).  In view of the specific provision in
the rules for whistleblower hearings, the ALJ should not have
relied upon the Federal Rules of Civil Procedure as the basis for
dismissal for failure to prosecute.  See Walters v.
Karmichael Tank Service, Case No. 90-STA-12, (Dep. Sec'y's
Final Dec. and Order, Jan. 22, 1991, slip op. at 3 (dismissing
complaint under 29 C.F.R. § 18.6(d) where ALJ recommended
dismissal under Rule 41, Fed. R. Civ. P.).
     Section 210(b) of the ERA provides that:  "any employee who
believes that he has been discharged or otherwise discriminated
against by any person in violation of subsection (a) of this
section may, within thirty days after such violation occurs, file
. . . a complaint with the Secretary of Labor . . . alleging such
discharge or discrimination."  42 U.S.C. § 5851(b). 
Similarly, the rules governing procedures for the handling of
discrimination complaints under the ERA provide, at 29 C.F.R.
§ 24.3(b), that a complaint shall be filed within 30 days
after the occurrence of the alleged violation.
     In moving for summary dismissal under 18 C.F.R. §
18.40, Respondents relied on affidavits and portions of
Complainant's deposition to show that the complaint is time
barred.  Complainant has offered no affidavits or other material
to refute the allegation that his complaint is untimely.
     Respondents' materials show that CP&L informed
Complainant in June 1988 that Complainant would be laid off as
part of a reduction in force, and Complainant's employment ended
that month.  Complainant filed his complaint more than two years
later, in November 1990.  As to the layoff, the complaint is
untimely.  See generally Delaware State College
v. Ricks, 449 U.S. 250, 258-261 (1980); English v. Whitfield, 858 F.2d
957, 960-962 (4th Cir. 1988), and cases cited therein.

[PAGE 3]
     The timeliness of the blacklisting allegation is measured
from the last occurrence of discrimination.  See
Roberts v. North American Rockwell Corp., 650 F.2d 823,
828 (6th Cir. 1981).  In cases under the ERA, the determination
is whether there was an alleged discriminatory act within 30 days
of the filing of the complaint.  See Garn v.
Benchmark Technologies, Case No. 88-ERA-21, Dec. and Order of
Remand, Sept. 25, 1990, slip op. 9-11 and Egenreider v.
Metropolitan Edison Co./G.P.U., Case No. 85-ERA-23, Order of
Remand, April 20, 1987, slip op. 7-8 (both remanding to
ALJ for hearing on whether complainant timely alleged continuing
violation through blacklisting).  See also Doyle
v. Alabama Power Co., Case No. 87-ERA-43, Sec. Dec., Sept.
29, 1989, aff'd sub nom. Doyle v. Sec'y, U.S.
Dep't of Labor, No. 89-7863, slip op. at 2 (11th Cir. Nov.
26, 1991). Respondents' materials establish that Complainant was aware
in 1988 that CP&L would not rehire him and that the last occasion
on which CP&L declined to rehire Complainant was October 15,
1990, more than 30 days prior to the filing of his complaint on
November 20, 1990.  Complainant did not submit any materials to
substantiate the allegation that CP&L rejected his application 
"a few weeks" prior to the filing of the complaint and that he
received a letter from CP&L on November 3, 1990 outlining the
reasons why he was not rehired.
     A party opposing a motion for summary judgment under the
analogous Fed. R. Civ. P. 56(e) "may not rest upon mere
allegations or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue for 
trial. . . .  Instead, the [party opposing summary judgment] must
present affirmative evidence in order to defeat a properly
supported motion for summary judgment."  Anderson v. Liberty
Lobby, 477 U.S. 242, 256-257 (1986).  See also,
Carteret Sav. Bank, P.A. v. Compton, Luther & Sons, Inc.,
899 F.2d 340, 344 (4th Cir. 1990).[1] 
     In light of Complainant's failure to present any affidavits
or materials in support of the timeliness of his complaint, we
agree with the ALJ that there is no genuine issue as to a
material fact and Respondents are entitled to judgment as a
matter of law because the complaint was untimely as to both the
layoff and the alleged blacklisting.  Accordingly, this case is
DISMISSED WITH PREJUDICE.
     SO ORDERED.


                              LYNN MARTIN                              
                              Secretary of Labor

[PAGE 4]

Washington, D.C.

OAA:CHIGGINS:kg:02/20/96
Room S-4309:FPB:523-9728



[ENDNOTES]
           
[1]   This case arises in the Fourth Judicial Circuit.