Gorman v. The Consolidated Edison Corp., 2001-ERA-42 (ALJ Jan. 17, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 2 Executive Campus, Suite 450 2370 Route 70 West Cherry Hill, NJ 08002 (856) 486-3800

Issue date: 17Jan2002

CASE NO.: 2001-ERA-00042

In the Matter of

JAMES H. GORMAN, JR.
    Complainant

    v.

THE CONSOLIDATED EDISON CORPORATION
    Respondent

   On January 11, 2002, Respondent filed a Motion for Summary Decision, asserting that the pre-2001 claims are barred by the 180-day statute of limitations (the complaint was filed on or about July 2, 2001). Further, Respondent posits that the allegation regarding Respondent's notification to Complainant about January 30, 2001, that his SRO license would not be renewed should also be dismissed because: (1) there was no adverse action against Complainant, (2) he was not engaged in protected activity that could support a retaliation claim, and (3) there were valid nondiscriminatory reasons for this action. Complainant filed an opposition to the motion on January 16, 2002.

   Respondent's argument that any pre-2001 acts in which it engaged involving Complainant are barred by the statute of limitations is meritorious. Accepting all of Complainant's allegations in his complaint and the other materials he has submitted, I see nothing which warrants a finding that a continuing violation existed that carried over into the 180-day period prior to the filing of the complaint. (A complete explication of the basis for this finding will be issued at a later date.) Thus, I grant the Motion for Summary Decision as to these claims.

   However, the complaint with regard to Respondent's January 30, 2001, notification to Complainant that his SRO license would not be renewed was timely. Further, contrary to Respondent's contention, I find that this was an adverse action and that it could have been in retaliation for Complainant's alleged prior protected activity. The validity of Respondent's defense of having a wholly nondiscriminatory motive for that action cannot be determined on the basis of affidavits and other documentary evidence but will have to be decided after Complainant (as well as Respondent) has the opportunity to present evidence at the formal hearing. (Further, Respondent's pre-2001actions vis-a`-vis Complainant may be admissible in evidence as proof of its motivation with regard to its action on January 30, 2001.) The portion of the Motion for Summary Decision which relates to the alleged January 30, 2001, act of Respondent is denied.

   Finally, Complainant's January 16, 2002, request for a continuance of the hearing is denied.

   IT IS SO ORDERED.

       Robert D. Kaplan
       Administrative Law Judge