In the Matter of Carl W. Rady, WPC-3 (Sec'y Aug. 26, 1977)

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In the Matter of Carl W. Rady, WPC-3 (Sec'y Aug. 26, 1977)

UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
CASE NO. WPCA-3

In The Matter of

CARL W. RADY

DECISION OF THE SECRETARY

This is a proceeding under Section 1367 of the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1251, et seq.), hereinafter referred to as the Act. Section 1367 (33 U.S.C. § 1367) provides that no person shall fire or otherwise discriminal against an employee by reason of the fact that he has instituted a proceeding under the Act, or has testified or is about to testify in such a proceeding. Any employee who believes that he has been fired or discriminated against in violation of this provision may, within thirty days after such violation occurs, apply to the Secretary of Labor for a review of such firing or alleged discrimination.

On June 25, 1973, Carl W. Rady was discharged from his employment by the Division of Highways, Department of Transportation of the State of Wisconsin. He appealed his discharge to the Wisconsin Personnel Board, which found that he was fired for just cause and sustained his discharge in a decision dated June 29, 1974.¹ On July 25, 1974, cover a year after he was fired, he requested the U.S. Department of Labor to review the matter, alleging a violation of Section 1367 of the Act.

The matter was referred to an Administrative Law Judge for a hearing and recommended decision. The State of Wisconsin submitted a motion for dismissal of Rady's application for review, on the ground, among others, that he did not file it within the time

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prescribed in Section 1367. In a decision dated May 20, 1977, the Administrative Law Judge granted the motion and dismissed the application. In arriving at his decision, the Judge considered and rejected the argument that the limitation period provided in Section 1367 was suspended or tolled by Rady's pursuit of his remedy before the Wisconsin Personnel Board. The Judge relied upon the recent decision of the Supreme Court in International U. of Elec. Workers v. Robbins & Myers, ___U.S.___ (1976), 97 S. Ct 441, in which the Court held that a similar statute of limitations contained in Title VII of the Civil Rights Act of 1964 was not tolled by grievance proceedings. The Court reasoned that the remedy afforded the aggrieved employee under the Civil Rights Act was legally independent from that afforded him through the grievance proceedings and the two remedies were equally available to the employee. The Administrative Law Judge concluded that the issue presented in the present case is essentially the same as that considered in the Robbins & Myers case, and that he was bound by the Supreme Court's decision therein.

It is my conclusion that the Administrative Law Judge's decision is correct, and I adopt it as my own. Accordingly, the application or review of Carl W. Rady is dismissed.

Dated at Washington, D.C.
this 26th day of August, 1977

RAY MARSHALL
Secretary of Labor

[ENDNOTES]

¹ Rady appealed the Personnel Board's decison to the Circuit Court of the State of Wisconsin for Dane County, which affirmed the Board's decision on January 27, 1975.