The Complainant submitted thirteen exhibits in response to the motion for summary decision.

   TVA maintains first that the facts not subject to dispute clearly show that the October 10, 1991, complaint was not timely filed. According to the statute and applicable regulations, a complaint must be filed, in writing, within 30 days after the occurrence of the alleged violation. See 29 C.F.R. §24.3(b). The undisputed facts in this case clearly show that the alleged violation took place sometime in March 1991, when the Complainant knew he had not been selected for the trainer position. The Complainant's argument that the violation did not occur until

September. 27, 1991, when he specifically learned that his nonselection was related to his unavailability for an interview, has no merit. The Complainant knew by January 14, 1991, that interviews were being held. Moreover, by March 1991, he knew that interviews had been scheduled, he had never been interviewed and that the job selection had been made. I find that it was at that time the Complainant became aware or reasonably should have been aware that he was the possible victim of discrimination, The effects of any alleged discrimination took place in March 1991 and not in October 1991. Accordingly, I conclude that the Respondent is entitled to summary judgment on the October 10, 1991 complaint. TVA has established that the facts not subject to dispute clearly show that the complaint was not timely filed.

The November 17, 1991 Complaint

The November 26, 1991 Complaint

   The parties stipulated to the following facts:

On November 14, 1991, Ed Ditto, the Manager of Electrical Maintenance, received a call from SQN requesting that he temporarily assign some WBN annual Maintenance electricians beginning that afternoon to assist in the outage at SQN. Because SQN is an operating nuclear plant, Mr. Ditto was requested to send only electricians who had up-to-date training to work in a contaminated environment. Among the training that was required was Health Physics General Employee Training (HP GET). Those WBN annual Maintenance electricians whose HP GET certification had expired were not considered for the temporary assignment to SQN. Accordingly, Mr. Ditto asked for HP GET-certified volunteers. When no currently HP GET-certified WBN annual Maintenance electricians volunteered to go to SQN for the temporary assignment, four HP GET-certified annual Maintenance electricians with the least TVA seniority were temporarily assigned to SQN. While at SQN, those electricians earned more than ,500 each in overtime pay. (Stip. 9).

training was not required. The Complainant was not the only electrician to not receive HP GET training after his certification lapsed. The four electricians who were subsequently assigned to SQN had received their training at about the same the same time in 1990 that Mr. Ditto took over and began phasing out the training. Their certificates were still valid in November 1992. Even the Complainant agreed that no electrician received HP GET training in order to qualify for the temporary job at SQN. Based on my review of the undisputed facts presented by the parties, I conclude that the Complainant has been treated like other similarly situated employees. TVA appears to have had other valid non-discriminatory reasons for its actions. Thus, the Respondent is entitled to summary decision on the November 26, 1991 complaint.

The January 10, 1992 Complaint

Background

   Complainant is an electrician employed by TVA on an annual basis and assigned to Electrical Maintenance at WBN. Complainant became aware that he had been reassigned from day (first) shift to evening shift--effective October 15, 1990. On October 15, Complainant reported to work on the first shift rather than the evening shift. At that time, he was notified orally and in writing to report on the evening shift on October 16. Complainant confronted his management and became angry and emotionally upset. He then went under a doctor's care and was prescribed an evening dosage of an anti-anxiety drug which is also a sedative. He did not report back to work on October 16. He was on sick leave from October 16 through November 16 and from November 26 through December 3, annual leave on November 19-21 and 23, from December 5 through January 7, 1991, and January 9-10, 1991, and a combination of sick and annual leave on December 4 and January 8. During that time, Complainant sought to return to work and reported to the TVA Medical Office on December 11-12, 1990. Because he was under the influence of medication, the Medical office imposed medical conditions including no work with energized circuits, powered equipment, unprotected machinery, or vehicles. Complainant's supervisor, Ed Ditto, refused to accept him to return to work in his electrical position with those restrictions. Complainant was advised to return to his doctor to have his medication schedule revised but he did not do so. He remained on leave until he returned to WBN on January 11, 1991. (Stip. 6).

   Complainant filed an ERA complaint against TVA dated November 16, 1990, which was docketed as 91-ERA-31 (JX 10). Deputy Chief Administrative Law Judge, John Vittone recommended that TVA's notion for summary judgment be granted and that 91-ERA-31 be dismissed (JX 12). That case is now pending before the Secretary of Labor.

1992 Return to Evening Shift

   Due to anticipated leave plans of the EM work force during the holidays in late December 1991 and January 1992, Mr. Ditto decided to have all of the organization temporarily report to work on the day shift over the holiday season, regardless of their regular shift assignment. He also gave them notice that following the holidays, the evening shift personnel, including the Complainant, would return to their normal second shift work hours (Ditto 12, p. 5; JX 4, p.4.). On

December 23, 1991, the Complainant sent Mr. Ditto a letter requesting that he prepare and implement an in-plant seniority list as described in TVA's collective bargaining agreement (JX 4, p. 3). Because the June 6, 1989, seniority list which had been agreed to by Management and the Complainant's Union was still valid, it was unnecessary for Mr. Ditto to prepare a seniority list. Accordingly, the Complainant and the other evening shift personnel were returned to normal evening shift on January 6, 1992 (Ditto 12, pp. 5,6).

Discussion

   TVA argues that the facts which are not subject to dispute show that the Complainant cannot meet his burden of proof to show that there was discrimination with respect to returning the Complainant to the evening shift on January 6, 1992. Moreover, TVA argues that the January 10, 1992 complaint was not timely filed. Finally, TVA avers that the January 10, 1992 complaint is barred by the res judicata effect of Deputy Chief Administrative Law Judge, John Vittone's November 26, 1991, recommended decision and order in No. 91-ERA-31.

   Taking the arguments in reverse order, I reject TVA's assertion that the doctrine of res judicata is applicable to this complaint. Deputy Chief Judge Vittone's recommended decision and order does not constitute a final order of the Secretary of Labor. Only when the Secretary of Labor issues a final order is a res judicata effect created in regard to this complaint.

   TVA next argues that the January 10, 1992 complaint should be dismissed as not being timely filed. TVA asserts that the effect of any alleged discrimination complained of actually took place in October, 1990, when the Complainant was first placed on the evening shift. Moreover, the later filed complaint (No. 91-ERA-31) was recommended by Judge Vittone to be dismissed as being late filed. The Complainant, in his brief, concedes that this is an attempt to litigate the merits of the prior complaint which Judge Vittone declined to address. I agree with TVA that the complaint is not timely. It would be inappropriate to allow the Complainant to somehow resurrect and address through this complaint the merits of a 1990 complaint which is pending final order before the Secretary of Labor. The merits of the 1990 complaint should be addressed, if at all, in the other proceeding. It is certainly untimely to address in the January 1992 complaint the merits of alleged discrimination, the effects of which took place in March 1990. Therefore, I conclude that TVA has established that the facts not subject to dispute show that the January 10, 1992 complaint was not timely filed.

   TVA also maintains that the facts which are not in dispute show that the Complainant can not meet his burden of proof to show that there was discrimination with respect to returning the Complainant to the evening shift on January 6, 1992. In his response, Complainant does not dispute the facts presented by TVA. After a review of the facts I conclude that TVA's argument has merit. TVA appears to have had a valid non-discriminatory reason (i.e. anticipated holiday leave plans) to temporarily move the entire EM organization from evening shift to day shift from mid December 1991 to January 6, 1992. Moreover, the temporary nature of the shift change appears to have been made clear to the employees. Furthermore, the facts show that on January 6,

1992, the Complainant and other members of his shift returned to the evening shift because other workers were no longer on holiday leave. The Complainant has not even suggested a discriminatory reason for his return to the evening shift. Accordingly, I conclude that the Respondent is entitled to summary judgment on the January 10, 1992 complaint. TVA has established that the undisputed facts show that the Complainant cannot meet his burden of proof that there was discrimination with respect to returning the Complainant to the evening shift on January 6, 1992. TVA has shown that the Complainant has been treated like other similarly situated employees and that TVA had another valid nondiscriminatory reason for its actions.

   For the foregoing reasons, I find that the Complainant has failed to state that there is any genuine issue as to any material fact with regard to the complaints dated October 10, 1991, November 17, 1991, November 26, 1991, and January 10, 1992, and that the Respondent is entitled summary judgement and dismissal of all complaints raised in this case as a matter of law. 29 C.F.R. §18.40(d).

   Respondent's Motion for Summary Judgment is hereby GRANTED. Complainant's October 10, 1991, November 17, 1991, November 26, 1991, and January 10, 1992 complaints are DISMISSED.

      DANIEL A. SARNO, JR.
      Administrative Law Judge

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