DATE:  October 6, 1994
CASE NO. 93-ERA-53


IN THE MATTER OF

RONALD GAVENSKY,

          COMPLAINANT,

     v.

NORTHEAST NUCLEAR ENERGY COMPANY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                                FINAL ORDER

     Before me for review is the Recommended Summary Decision and
Order (R.D. and O.) of the Administrative Law Judge (ALJ) in this
case arising under the employee protection provision of the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. 
§ 5851 (1992).  The ALJ granted Respondent's motion for
summary dismissal of this complaint, finding that Complainant
failed to file a timely request for a hearing and did not
establish a basis for equitable tolling of the five day appeal
period.  
     Upon careful review of the ALJ's R.D. and O. and the
complete record in this case, I fully agree with the ALJ's
conclusion that a summary dismissal is appropriate in this case. 
Complainant has failed to show that a genuine issue of material
fact exists with respect to the issues of timeliness of his
hearing request or equitable tolling of the appeal period. 
See Street v. J.C. Bradford & Co., 886 F.2d
1472, 1476-1481 (6th Cir. 1989); Merriweather v. Tennessee
Valley Authority, Case No. 91-ERA-55, Sec. Final Dec. and
Ord., Feb. 4, 1994, slip op. at 2-3.
     There is no question that Complainant failed to timely 
[PAGE 2]
request a hearing within the five day period provided in the
regulations.  29 C.F.R. § 24.4(d)(2)(i) (1993).  It is
undisputed that Complainant received the April 8, 1993 letter
from the Wage and Hour division, denying his complaint and
informing him of his right to a hearing and the procedure for
requesting a hearing.  Nevertheless, Complainant took no action
concerning the denial of his complaint until July 8, 1993 when he
telephoned the Wage and Hour Division, and did not file any form
of hearing request with the Chief ALJ until August 27, 1993.
     Complainant's assertions in response to Respondent's motion
for summary dismissal, that the five day appeal period should be
tolled because of his physical and emotional health concerns,
must also fail.  As the ALJ found, Complainant has not shown that
equitable tolling of the five day appeal period, which commenced
when he received the April 8 letter denying his complaint, is
warranted in this case.  School District of the City of
Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981)
(limited circumstances warranting equitable tolling).
     For the reasons discussed herein, I adopt and append the
ALJ's R.D. and O. dismissing the complaint.  Accordingly, the Wage and Hour notice of determination letter, dated April 8,
1993, is the final order denying the complaint.  29 C.F.R. 
§ 24.4(d)(2)(i).
     SO ORDERED.


                              ROBERT B. REICH 
                              Secretary of Labor

Washington, D.C.