The standard for granting summary decision is set forth at 29 C.F.R. § 18.40(d)(1994). See, e.g., Webb v. Carolina Power & Light Co., Case No. 93.-ERA-42, Sec. Dec., Jul. 17, 1995, slip op. at 4-6. This section, which is derived from Fed. R. Civ. P. 56, permits an ALJ to recommend summary decision for either party where "there is no genuine issue as to any material fact and…a party is entitled to summary decision." 29 C.F.R. § 18.40(d). Thus, in order for Respondent' s motion to be granted, there must be no disputed material facts and Respondent must be entitled to prevail as a matter of law. Gillilan v. Tennessee Valley Authority, Case No. 91-ERA-3 1, 91-ERA-34(Sec'y August 18, 1995)(Slip. Op. at 3).

   The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,324 (1986). It is enough that the evidence consists of the party's own affidavit, or sworn deposition testimony and declaration in opposition to the motion for summary judgment. Celotex Corp., 477 U.S. at 324; Foster v. Arcata Assoc., Inc.,772 F.2d 1453, 1461 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). The determination of whether a genuine issue of material fact exists must be made viewing all evidence and factual inferences in the light most favorable to Complainant. Trieber v. Tennessee Valley Authority, Case No. 87-ERA-25 (Sec'y Sept. 9, 1993).

The Filing Period

   In the instant case, only facts pertinent to the timeliness of the filed complaint are germane to the summary decision determination. However, as a threshold issue, the date of discrimination must be established which commences the statutory filing period. The time period for administrative filings begins on the date that the employee is given final and unequivocal notice of the Respondent's employment decision. The United States Supreme Court has held that the proper focus is on the time of the discriminatory act and not the point at which the consequences of the act become painful. Chardon v. Fernandez, 454 U.S. 6, 9; 102 S. Ct. 28, 29(1981); Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498 (1980); See, English v. Whitfield, 858 F.2d 957, 961 (4th Cir. 1988).

   I find that Complainant received notice of his termination on October 4, 2001 and therefore a timely complaint under the Energy Reorganization Act should have been filed by April 2, 2001. Since the complaint was not mailed until April 4, 2001, it was clearly untimely. See, Kang v. Department of Veterans Affairs Medical Center, Case No. 92-ERA-3 I (Sec'y Feb. 14, 1994). I further find that there is no genuine issue of material fact concerning Complainant's failure to timely file his complaint within the 180-day statutory period. Accordingly, his complaint of discriminatory termination is time-barred and it is recommended that his complaint be dismissed.

   The Complainant has stated an excuse for his late filing, namely that he appealed the revocation of his access authorization with CP&L and that the appeal took up some of the 180-daytime period he had to file his complaint (Exhibit B).

   The Courts have held that time limitation provisions in like statutes are not jurisdictional, in the sense that a failure to file a complaint within the prescribed period is an absolute bar to administrative action, but rather are analogous to statutes of limitation and thus may be tolled by equitable consideration. School District of the City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981); Coke v. General Adjustment Bureau, Inc., 64 F.2d 584 (5th Cir. 1981); and Donovan v. Hakner, Foreman & Harness, Inc., 736 F.2d 1421 (10th Cir. 1984). The Court in School District of the City of Allentown, warns, however, that the restrictions on equitable tolling must be scrupulously observed; the tolling exception is not an open invitation to the courts to disregard limitation periods simply because they bar what may be an otherwise meritorious cause. Accord, Rose v. Dole, 945 F.2d 1331, 1336 (5th Cir. 1991).

   In School District of the City of Allentown, the court noted the principal situations where tolling is appropriate relying on Smith v. American President Lines, LTD., 571 F.2d 102 (2d Cir. 1978) which interpreted Supreme Court precedent as implying that tolling might be appropriate only where a respondent actively misled the complainant respecting the cause of action; or where the complainant has in some extraordinary way been prevented from asserting his rights; or a complainant has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. Id., at 19-20.

   It is significant that Complainant does not contend that he mistakenly filed his complaint in the wrong forum, nor did Complainant allege any misconduct by the Respondent. Complainant's failure to offer any other evidence on this issue prevents tolling. Accordingly, his complaint is barred by the statute of

   In view of the foregoing findings and conclusions, the hearing scheduled for October 4, 2001 is hereby CANCELED.

   So ORDERED.

      RICHARD D. MILLS
      Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of the Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).