DATE: August 26, 1996

CASE NO.: 96-ERA-20

In the Matter of:

BENNY L. GUINN,
    Complainant,

    v.

TENNESSEE VALLEY AUTHORITY,
    Respondent.

Appearances:

    CLYDE A. BLANKENSHIP, ESQ.
       For the Complainant

    THOMAS F. FINE, ESQ.
    BRENT MARQUAND, ESQ.
       For the Respondent

Before: RICHARD K. MALAMPHY
   Administrative Law Judge

    This matter arises under the Energy Reorganization Act of 1974 as amended, 42 U.S.C. 5851 et seq, hereinafter called "the Act." The Act prohibits a Nuclear Regulatory Commission (NRC) licensee from

discharging or otherwise discriminating against an employee who was engaged in activity protected by the provisions recited therein. The Act, designed to protect so-called "whistleblower" employees from retaliatory or discriminatory actions by their employers, is implemented by regulations found at 29 C.F.R. Part 24.

    The Respondent states that the Complainant was discharged from employment on March 30, 1987. The Complainant appealed his termination to the Merit Systems Protection Board (MSPB), and the full Board upheld the termination in a decision issued on January 22, 1988. The Complainant was represented by counsel during proceedings with the MSPB.

    On February 26, 1996, Mr. Guinn filed his complaint under the whistleblower provisions of Section 210 of the Energy Reorganization Act ("ERA"), 42 U.S.C. §5851, and the implementing regulations of the Secretary of Labor at 29 C.F.R. Part 24.

    The Respondent filed a motion for summary decision on the basis that the Complainant had 30 days following termination to file a complaint under the ERA. (The 1992 amendment to the ERA extended the time limit to 180 days.)

    On June 14, 1996, this Administrative Law Judge issued an order to show cause why the case should not be dismissed.

    On July 19, 1996, Mr. Blankenship indicated that he had discussed the matter with the Complainant.

    On July 22, 1996, the Complainant responded and stated, in part

After giving further thought to my conversation with Mr. Blankenship on Friday July 19, 1996, I felt I needed to write to you in one last effort to have my case heard.

Due to the fact that my case involves wrongdoing by Tennessee Valley Authority (TVA) Management to cover-up faulty work and unsafe conditions at TVA Nuclear Power Plants, and also TVA's past record of unjust

treatment of "WHISTLEBLOWERS", no time limit should ever apply. Since TVA is allowed to cover up these unsafe conditions by fraud, falsyfing records and other wrongdoing, there will eventually be a disastrous accident at one of TVA's Nuclear Plants that could have been prevented.

I would like to plead with you to waive all time limits and hear my case. If you decide in favor of TVA, you will allow TVA to finally be successful in their efforts to prevent the facts in my case from ever being heard.

    An affidavit from Deborah Cherry is of record.

    The Respondent argues that the complaint was filed more than 30 days after the alleged discriminatory event and, therefore, it is untimely and must be dismissed. The Respondent states that the Complainant cannot claim ignorance as an excuse for his failure to timely file his complaint where he was represented by counsel in an appeal of his termination to the MSPB. Counsel cites Mitchell v. EG&G & TVA, 87 ERA 22, (Secy Dec July 22, 1993).

    The undersigned must agree with Respondent that Mitchell, supra, appears to be controlling. In Mitchell, the Secretary cited case law regarding representation by counsel and as to equitable tolling. The Secretary noted that

"Equitable tolling is inappropriate when plaintiff has consulted counsel during the statutory period. Counsel are presumptively aware of whatever legal recourse may be available to their client, and this constructive knowledge of the law's requirements is imputed to [plaintiff]". Hay v. Wells Cargo, Inc., 596 F. Supp. 635, 640 (D. Nev. 1984), aff'd, 796 F.2d 478 (9th Cir. 1986).

    In addition, the Secretary pointed out that

"Complainant's ignorance of the law in not enough to invoke equitable tolling." School District of the City of Allentown v. Marshall, 657 F.2d at 21. Federal Crop Insurance Corporation v. Merrill, 332 U.S. 380, 384-85 (1947); Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991) (See Hill v. U. S. DOL & TVA, 65 F.3d 1331 (6th Cir 1995).

    In this case, the Complainant was dismissed in 1987, and filed an appeal to the MSPB. Following denial by MSPB in 1988 the Complainant took no further action until early 1996, when he

filed a complaint under the ERA. I must conclude that the Respondent's motion for summary decision should be GRANTED.

    IT IS RECOMMENDED that this case be DISMISSED on the basis of Complainant's failure to file a timely complaint.

RICHARD K. MALAMPHY

Administrative Law Judge

RKM/ccb

Newport News, Virginia

NOTICE: This Recommended Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. The Administrative Review Board has the responsibility to advise and assist the Secretary in the preparation and issuance of final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).