DATE: February 21, 1992
CASE NO. 89-CAA-00004


IN THE MATTER OF
LOUIS A. RODOLICO,
               COMPLAINANT,

       v.               

VENTURI, RAUCH AND SCOTT BROWN,
RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                          FINAL DECISION AND ORDER
                                      
    Before me for review is the [Recommended] Order of Dismissal
(R.O.) [1] of the Administrative Law Judge (ALJ) in this case
arising under the employee protection provision of the Clean Air
Act (CAA or the Act), 42 U.S.C. § 7622 (1988), and implementing
regulations at 29 C.F.R. Part 24 (1991).  Complainant alleged, in
a complaint filed May 16, 1989, and supplemented May 24, 1989,
that Respondent discharged him and subsequently "blacklisted"
him in retaliation for his alleged protected activity under
the CAA.

[PAGE 2]
         Complainant was employed by Respondent as an
architect/designer from 1982 until early 1986.  He worked
primarily on the "Treehouse Project," which was to be
constructed at the Philadelphia Zoo.  When the project was
completed in 1986, Complainant's employment with Respondent
was terminated.  In 1987-88, Complainant's partnership with
Dennis Aufiery dissolved and Complainant alleges this
breakup resulted from Respondent's blacklisting. In response
to Respondent's motion to dismiss the complaint, the ALJ
ordered Complainant to show cause why his complaint should
not be dismissed as untimely filed.  The ALJ addressed
Complainant's submission in response to the order as
follows:

    He stated that the Employer took actions which caused the
    dissolution of his partnership in October, 1988. He also stated
     that the employer continues to blacklist him.  Letters dated
     November 23, 1988 and March 16, 1989 were submitted in support of
     the Claimant's statements.[[2]]

     The last identified occurrence of the alleged violation was on  
     March 16, 1989.  The Claimant filed his complaint on May 16, 1989. 
     This is beyond the 30 day time of filing set forth at 29 C.F.R. §
     24.3(b).  Even assuming that the violation alleged by the Claimant
     was ongoing, he fails to meet the provisions set forth at 29
     C.F.R. Part 24.  29 C.F.R. § 24.2 provides that an
     Employer shall not discharge or otherwise discriminate
     against any employee engaged in any of the activities
     specified in paragraph (b) of that section.  Paragraph (b))
     states that an employee who has (1) commenced, caused to be
     commenced, or is about to commence, (2) testified or is 
[PAGE 3]
     about to testify, or (3) assisted, participated or is about
     to assist or participate in a proceeding under one of the
     listed federal statutes shall not be discriminated against. 
     In this case, the Claimant does not state that he took any
     type of action under the Clean Air Act or was about to take
     any action under the Act which resulted in discrimination.

R.O. at 1-2.  The ALJ recommended that Respondent's motion
be granted and the complaint be dismissed.  Id. at 2. 
Pursuant to an order permitting briefing before me, both
Complainant, pro se, and Respondent, through counsel, have
submitted filings.

  The Act and the regulations expressly provide that any complaint
shall be filed within 30 days after the occurrence of the alleged
violation.  42 U.S.C. § 7622(b)(1); 29 C.F.R. § 24.3(b).  Both
Complainant's discharge in 1986 and the termination of the partnership
in the fall of 1988 were outside the thirty-day filing period
and none of Complainant's submissions afford any basis for
tolling the statutory limitation.  See School
District of the City of Allentown v. Marshall,
657 F.2d 16, 19-20 (3d Cir. 1981).  To the extent that the
March 16, 1989, letter from Mr. Aufiery may imply that
Respondent had commented negatively about Complainant's
conduct, that event also is beyond the thirty-day period
which I must "scrupulously observe[]."  City of
Allentown, 657 F.2d at 19. Nor has Complainant raised
"a sufficiently specific allegation that [Respondent]
committed an act of discrimination within thirty days prior to
his filing the complaint, " Garn v. Benchmark Technologies,
Case No. 88-ERA-21, Sec. Dec. and Order of Remand, Sept. 25,
1990, slip op. at 11, to render timely his generalized claim of blacklisting. 
See Doyle v. Alabama Power Company, Case No.
87-ERA-43, Sec. Final Dec. and Order, Sept. 29, 1989,
aff'd Doyle v. Sec'y. U.S. Dept. of Labor, No.
89-7863, slip op. at 9 (llth Cir. Nov. 26, 1991).

    Upon consideration of the record before the ALJ, his
recommended decision, the parties' submissions before me and the
applicable law, I find the complaint untimely filed. Accordingly,
this case is DISMISSED.

    SO ORDERED.


                            LYNN MARTIN
                            Secretary of Labor                      
  
Washington, D.C.




[PAGE 4]

[1]  In ordering the complaint dismissed, the ALJ followed, without
citation, the procedure for dismissals for cause set forth in the
applicable regulations at 29 C.F.R. § 24.5(e)(4). Such rulings by
ALJ's are "recommended" orders, subject to review by the
Secretary.  Avery v. B & W Commercial Nuclear Fuel Plant,
91-ERA-8, Sec. Final Order of Dismissal, Oct. 21, 1991, slip op.
at 3.

[2]  These letters concern a project undertaken by Complainant in
partnership with Dennis Aufiery.  The November 23 letter
(Attachment C-8 to Complainant's response to the ALJ's show cause
order) is from the Mayor of the City of Sea Isle, New Jersey,
responding to Complainant's questions regarding payment for his
services on the project and stating that the city did not wish to
become involved in the problems relating to the partnership's
dissolution.  The March 16 letter was from Mr. Aufiery and warned
Complainant to "stop harassing me. . . ." and explained at some
length Mr. Aufiery's position concerning the project, the end of
the partnership on  October 9, 1988, and the reasons for it.
Attachment C-9 to Complainant's response.

[3]  In so ruling I do not adopt the ALJ's discussion and
finding that Complainant had not stated that he had taken or was
about to take action protected under the Act.  See R.O. at
2. Complainant's filings assert that he raised concerns with
Respondent about the level of toxic materials, including airborne
fiberglass fibers, being used in the Treehouse Project and that he
called "OSHA" about these concerns.  Complaint of May 16, 1989. 
Such acts, if proven, would appear to be protected conduct. 
See Bivens v. Louisiana Power & Light, 89-ERA-30,
Sec. Dec. and Order of Remand, June 4, 1991, slip op. at 4-5.