DATE: July 9, 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
ERRATA ORDER
The July 8, 1992, Final Decision and Order in this case is
corrected to read as follows on the first page, first paragraph,
final sentence: 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 Respondents are entitled to
summary decision because the complaint is time barred.
SO ORDERED.
For the Secretary of Labor
M. Elizabeth Culbreth
Director, Office of
Administrative Appeals
Washington, D.C.
1/ This order is issued pursuant to Secretary's Order 3-90, 55
Fed. Reg. 13,250 (April 9, 1990) (copy appended).
DATE: July 8, l992
CASE NO. 91-ERA-14
IN THE MATTER OF
WILLIAM R. GORE,
COMPLAINANT,
[PAGE 2]
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 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
[PAGE 3]
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.
SeeWalters 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.
SeegenerallyDelaware 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.
The timeliness of the blacklisting allegation is measured from
the last occurrence of discrimination. SeeRoberts v.
NorthAmerican 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. SeeGarn 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). SeealsoDoyle v. Alabama Power
[PAGE 4]
Co., Case No. 87-ERA-43, Sec. Dec., Sept. 29, 1989,
aff'dsubnom.Doyle v. Sec'y, U.S. Dep't
of Labor, No. 89-7863, slip op. at 2 (l1th 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). Seealso, 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
Washington, D.C.
[1] This case arises in the Fourth Judicial Circuit.