DATE: January 26, 1998

CASE NO.: 92-ERA-0053

In the Matter of:

KAREN D. BILLINGS, On Behalf Of
DOUGLAS E. BILLINGS, Deceased,
    Complainant

    v.

TENNESSEE VALLEY AUTHORITY,
    Respondent

BEFORE: Robert L. Hillyard
    Administrative Law Judge

   This action arises under the Energy Reorganization Act, Public Law 95-601, Section 210, 42 U.S.C. § 5851.

   Douglas E. Billings, on May 29, 1992, filed a complaint under the Energy Reorganization Act, Public Law 95-601, Section 210, 42 U.S.C. § 5851. In his letter of complaint, Billings states:

    On May 1, 1992, I became aware that TVA management had supplied false information to the Employees' Compensation Appeals Board. This information was relied upon by the Employees' Compensation Appeals Board (ECAB) in their decision to disallow Federal Employee's Compensation Act (FECA) benefits for a stress related claim filed by myself.

    There are too many facts relating to this illegal conduct to disclose in this initial complaint. I ask you to be honest and conduct a proper investigation, which will include myself.

    This is a continuing violation, as TVA has been found guilty of past illegal acts against me.

   A compliance investigation was conducted by the Wage and Hour Division, Employment Standards Administration of the U.S. Department of Labor. On August 27, 1992, the District Director wrote to Billings that it was their determination that discrimination was not a factor and the allegations could not be substantiated and no further action would be taken on his complaint. Billings appealed the action of the Wage and Hour Division and the case was referred to the Office of Administrative Law Judges.

   The Respondent, Tennessee Valley Authority, on March 17, 1993, filed a Motion for Summary Judgment. A response thereto was filed by the Complainant on March 26, 1993. Mr. Billings died on February 21, 1994. His widow, Karen D. Billings, was appointed as the Personal Representative of his Estate and has been substituted as Complainant to pursue the claim.

   Upon review of the record, I find that the claim must be dismissed for the following reasons.

   Billings was not an employee within the meaning of the Act. Billings had not worked at TVA since 1986. His employment relationship with TVA was terminated in January 1989. This claim was filed on May 29, 1992 and does not concern any TVA action during his employment or affecting his employment. Billings cannot be considered as an employee of TVA at the time his complaint was filed within the requirements of 42 U.S.C. § 5851.

   The claim that TVA management supplied false information to the Employees' Compensation Appeals Board upon which it relied in its decision to disallow Federal Employee's Compensation Act benefits is not a discriminatory act as envisioned by 42 U.S.C. § 5851. The Complainant had not worked for TVA for several years and the required discriminatory intent would necessarily be lacking.

   The FECA statute provides the sole remedy for claims arising under it. There is no reservation of oversight of FECA under the ERA. Owens v. Brock, 860 F.2d 1363, 1369 (6th Cir. 1988); 5 U.S.C. §§ 8116(c), 8128(b).

   The complaint is barred by the principle of res judicata. The basis of the complaint was unsuccessfully litigated in previous ERA proceedings. See Billings v. Tennessee Valley Authority, Case Nos. 91-ERA-12, 89-ERA-16, and 90-ERA-18.

   The Complainant failed to comply with the Order dated March 13, 1997, directing her to show cause why the complaint should not be dismissed due to her failure to state a claim upon which relief could be granted under the Energy Reorganization Act.

   For the foregoing reasons, it is therefore,

   ORDERED that Summary Judgement is hereby entered against the Complainant, Karen Billings, on behalf of Douglas Billings, deceased, and in favor of the Respondent, Tennessee Valley Authority, and this case is hereby DISMISSED WITH PREJUDICE.

      ROBERT L. HILLYARD
      Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for final decision to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C., 20210. See 61 Fed. Reg. 19978 and 19982 (1996).