DATE:  November 10, 1994

CASE NO.: 95-ERA-2

In the Matter of

GARY L. IRICK,
          Complainant

     v.

ARIZONA PUBLIC SERVICE COMPANY/
ARIZONA NUCLEAR POWER PROJECT,
          Respondents


                               ORDERS
             DENYING RESPONDENT'S MOTION FOR SUMMARY DECISION-
           GRANTING RESPONDENT'S MOTION FOR PRETRIAL CONFERENCE-
HOLDING IN ABEYANCE RESPONDENT'S MOTIONS TO COMPEL AND FOR A
                              CONTINUANCE

     This matter arises under the employee protection provision
of the Energy Reorganization Act of 1974, as amended, 42 U.S.C.
§5851 (ERA).  On October 27, 1994, I issued a notice setting
the case for a hearing on November 15, 1994 in Phoenix, Arizona. 


     On November 2, 1994 the Respondents filed a Motion for
Summary Decision.  The Respondents contend, in substance, that
the complaint in this case should be denied in its entirety for
the reasons that the Complainant and his representative "have
subverted the statutorily-required procedure for the [initial
investigation] of complaints of this nature" and because "the
information that Mr. Irick has submitted in this case does not
establish a prima facie case of retaliation and does not raise
any genuine issue of material fact."  Documentation in support of
the motion was appended thereto and has been supplemented
subsequently.

     On November 3, 1994 I issued,  and had served on the
Complainant's representative by telecopier, an Order directing
that any response to the  Respondent's Motion for Summary
Decision be filed so as to reach this Office by November 8, 1994. 
A timely response has been received objecting to Respondent's 
[PAGE 2]
motion.

     The Supreme Court's observation in Poller v. Columbia
Broadcasting System, Inc., 368 U.S. 464, 473 (1962) that
"summary procedures should be used sparingly...where motive and
intent play lead roles" has been held to be particularly
applicable to proceedings arising under whistleblower statutes like the ERA.
(Richter v. Baldwin Associates, 84-ERA-9-12 (Sec'y of
Labor Mar. 12, 1986).  Nevertheless, summary decisions have been
recognized as appropriate in cases where there is no genuine
issue of material fact and a party is entitled to judgement as a
matter of law.  See, e.g., Trieber v. Tennessee Valley
Authority, et. al.,  87-ERA-25 (Sec'y of Labor Sept. 9,
1993).  I believe that the Complainant's response, when read in
context with his appended answers to Respondent's
interrogatories, adequately identify issues of material fact,
regarding more contemporary, alleged, protected activity, and
purported retaliation therefore, to warrant a hearing in this
case.  Furthermore, as there is no precedent for the Respondent's
view that the complaint should be dismissed because of lack of
cooperation in the investigation,  I deem it prudent not to risk
bifurcating this proceeding by submitting any recommendation to
the Secretary on this issue at this time.  Accordingly, the
motion for summary decision is denied.


     The Respondent's have indicated that they have been hampered
in their discovery efforts because of inadequate responses by the
Complainant to their interrogatories and requests for production
and because of the short period which will be remaining between
the planned taking of depositions and the scheduled trial.  They
have asked that a pre-hearing conference be held on November 15,
1994 and that the formal hearing scheduled for that date be
postponed.  I agree that a pre-hearing conference will be useful
in this case to explore the simplification of issues; the
possibility of obtaining stipulations of facts and agreement as
to the admission of documentary evidence; the limitation of the
number of expert or other witnesses; the negotiation, compromise
or settlement of any or all issues; a schedule to be followed, if
necessary, for the completion of the actions decided at the
conference; and such other matters as may aid in an expeditious
disposition of the proceeding.  Accordingly, I grant the motion
for a pre-hearing conference and will commence the same at 9:00
A.M. on November 15, 1994 in lieu of convening the formal hearing
at that time.

[PAGE 3]


     I will hold in abeyance the Respondent's motion to compel
and for a continuance of the hearing to some other date pending
the outcome of the interim discovery and the pre-hearing
conference.  I note in this regard that the parties'
representatives will be meeting for the taking of depositions on
November 11 and 14, 1994 and they are directed to attempt at
those times to amicably resolve any remaining  discovery
disputes.  Furthermore, in view of the statutory time constraints
I am reluctant to postpone the commencement of the hearing in
this matter.  Hopefully, sufficient progress will be made in the
next few days and during the pre-hearing conference to permit
starting the hearing phase immediately thereafter.  Consequently,
the parties should have their respective witnesses on standby.



                                   ____________________________
                                   JOEL R. WILLIAMS
                                   Administrative Law Judge