DATE:  April 20, 1995
CASE NOS.:  92-ERA-46
            92-ERA-50


IN THE MATTER OF

GEORGE M. GILLILAN,

             COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY,

             RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER 

     Before me for review is the Administrative Law Judge's
(ALJ's) Recommended Order Granting Summary Judgment (R. O.)
issued on December 18, 1992, under the employee protection
provision of the Energy Reorganization Act, as amended (ERA), 
42 U.S.C. § 5851 (1988). [1]   
BACKGROUND
     Complainant, George M. Gillilan, is employed by Respondent,
Tennessee Valley Authority (TVA), as an electrician in the
Electrical Maintenance organization at the Watts Bar Nuclear
Plant, located in Tennessee.  In four separate complaints of
discrimination, dated October 10, 1991 (failure to select
Gillilan for a temporary training position); November 17, 1991
(failure to offer Gillilan overtime on October 19, 1991);
November 26, 1991 (failure to assign Gillilan to the Sequoyah
Nuclear Plant on November 14, 1991); and January 10, 1992
(returning Gillilan to second shift); Gillilan contended that
TVA, in taking or failing to take various actions, retaliated
against him for reporting safety concerns to the Nuclear
Regulatory Commission (NRC) in violation of the employee 
[PAGE 2]
protection provision of the ERA. [2]   The parties submitted a
Joint Prehearing Submission which identified the legal and
factual issues for resolution (JX l through JX 13) and
stipulations of fact to which the parties had agreed (Stip. 1
through Stip. 12).  
     TVA filed a Motion for Summary Judgement on October 30,
1992, on the grounds that the uncontested facts showed that
Gillilan could not establish that there was discrimination with
respect to any of his allegations; that two of these claims were
not timely filed; and that one claim was barred by res
judicata.  Gillilan objected to the motion for summary
judgement contending that there were numerous disputed issues of
material fact.  The ALJ recommended granting the motion for
summary judgement because one of Gillilan's complaints was
untimely filed; Gillilan had failed to show that there were any
genuine issues of material fact with regard to two complaints,
and TVA was entitled to judgment as a matter of law; and the
other complaint was both untimely and failed to present an issue
of material fact such that TVA was entitled to judgment as a
matter of law.  
     After review of the entire record, I conclude that the ALJ's
decision is correct in all respects and adopt it.  I discuss two
issues below to clarify the decision. 
                             DISCUSSION
     A. Timeliness of the October 10 Complaint.
     Gillilan's October 10, 1991 complaint alleged that in early
1991 he was not selected for a position as a temporary trainer in
retaliation for his protected activities.  Gillilan learned of
his nonselection in March 1991, more than six months prior to the
October 10 complaint.  The ALJ ruled that the October 10
complaint was untimely. [3]   Gillilan contends however, that his
complaint is not time-barred because he did not know the reason
for his non-selection until September 27, 1991.  Gillilan also
asserts that because the November 17 and 26 complaints
were timely and involved the same course of events as the
failure to select him as a trainer, the subject of his October
10, 1991 complaint was part of TVA's continuing violation of the
employee protection provision of the ERA, and therefore the
complaint was not time-barred. 
     The ALJ correctly ruled that the October 10 complaint was
filed out of time.  First, the fact that Gillilan may not have
known the reason for TVA's failure to select him until 
September 27, 1991, is irrelevant.  Gillilan knew as early as
March that he had not been interviewed for the position and that
other people had been selected.  That knowledge was sufficient to
have triggered Gillilan's awareness of and duty to assert his
rights under the ERA.  See, e.g., Pacheco v. Rice, 966
F.2d 904, 906 (5th Cir. 1992).   

[PAGE 3]
     Second, the theory of continuing violation does not
resurrect this time-barred complaint.  The Secretary has held
that a complaint of retaliation is timely under the continuing
violation theory "where there is an allegation of a course of
related discriminatory conduct and the charge is filed within
thirty days of the last discriminatory act."  Garn v.
Benchmark Technologies, Case No. 85-ERA-21, Dec. and Ord. of
Remand, Sept. 25, 1990, slip op. at 6; Egenrieder v. Metropolitan
Edison Co./G.P.U., Case No. 85-ERA-23, Ord. of Remand, Apr.
20, 1987, slip op. at 4.  The continuing violation theory has its
origins in cases brought under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (1988), as an aid in
determining whether a complaint has been timely filed.  Elliot
v. Sperry Rand Corp., 79 F.R.D. 580 (D. Minn. 1978); see
OFCCP v. CSX Transportation, Inc., Sec. Dec. and Ord. of
Remand, Oct. 13, 1994, slip op. at 22-26, for a full discussion
of the appropriate use of the continuing violation theory.  
     Gillilan attempts to bring his October 10 complaint within
the ambit of the continuing violation theory by alleging that
TVA's failure to select him for the temporary electrical trainer
position, its failure to call him for overtime on October 17, and
its November 14 failure to assign him to the Sequoyah Nuclear
Plant involved, "the same course of events, that is, management's
determination to deny [him] opportunities to earn additional pay
through overtime or promotion to higher paying positions."  In
other words, Gillilan claims that these various actions were
related because they all allegedly affected his working
conditions.  That is not sufficient to establish the link that is
necessary in order to fit within the continuing violation rubric. 
A set of isolated, permanent decisions involving disparate facts
does not amount to a continuing violation.  Berry v.
Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir.
1983, cert. denied, 479 U.S. 868 (1986)).  See,
generally, Elliot v. Sperry Rand Corp., 79 F.R.D. 580 (D.
Minn. 1978).  
     In any event, because I conclude that the ALJ correctly
ruled that the October 17, November 14, and January 6, 1992
actions were not retaliatory (R. O. at 5-10), there is no
timely discriminatory action upon which Gillilan can hang his
untimely October 10 complaint. 
     B.  Summary Judgement.
     The ALJ correctly granted summary judgment regarding the
November 17 and 26, 1991 and the January 10, 1992 complaints. 
The standard for granting summary decision under 29 C.F.R. 
§ 18.41 (1994) is the same as that for summary judgment
under the analogous Rule 56, Fed.R.Civ.P:  the moving party must
show that there is no genuine issue of material fact, and that he
is 
[PAGE 4]
entitled to prevail as a matter of law.  Adikes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970). [4]   There is nothing
in the record to support Gillilan's contention that there were
outstanding  genuine issues of material fact with respect to any
allegation in the complaints.  Therefore, the ALJ's grant of
summary decision was correct, and I adopt his Recommended Order
in full.
CONCLUSION
     The ALJ's R. O. granting TVA's motion for summary decision
is correct in all respects.  Accordingly, these cases are
dismissed.     
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary Of Labor

Washington, D.C. 



[ENDNOTES]
           
[1] 
  The amendments to the ERA contained in the National Energy
Policy Act of 1992, Pub.L. 102-486, 106 Stat. 2776 (Oct. 24,
1992), do not apply to this case in which the complaint was filed
prior to the effective date of the Act.  For simplicity's sake I
will refer to the provision as codified in 1988.

[2] 
  TVA did not dispute that Gillilan engaged in protected activity
within the meaning of the ERA.  Respondent's Reply Brief before
the Office of Administrative Law Judges, Dec. 3, 1992 at 2 n.1.

[3] 
  During the time at issue, the ERA required that a complaint be
filed within 30 days after the occurrence of an alleged
violation.  42 U.S.C. § 5851(b); 29 C.F.R. § 24.3(b)
(1994).  Section 2902(b) of the Energy Policy Act of 1992, Pub.
L. No. 102-486, 106 Stat. 2776, amended the time period for
filing a complaint to 180 days for claims filed on or after the
date of its enactment, October 24, 1992.  See Section 1902(i) of
Pub. L. 102-486.  

[4] 
  Section 18.40(d) of 29 C.F.R. provides that summary decision is
appropriate if the pleadings, affidavits, material obtained by
discovery or otherwise, or matters officially noticed show that
there is no genuine issue as to any material fact.