DATE:  March 24, 1995
CASE NO. 90-ERA-37


IN THE MATTER OF

JOHN J. DELCORE,

          COMPLAINANT,

     v.

NORTHEAST UTILITIES,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                              ORDER OF REMAND

     Complainant John Delcore brings the captioned complaint of
unlawful discrimination against Respondent Northeast Utilities
under Section 210 (employee protection provision) of the Energy
Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1988).
[1]   In his June 11, 1990, Recommended Order of Dismissal, the
Administrative Law Judge (ALJ) determined that the case should be
dismissed because the ERA did not apply to the complaint.  I
disagree and find that dismissal is not appropriate at this stage
of the proceeding.  
     In February 1990, Complainant, who is appearing pro
se, filed his complaint of unlawful discrimination.  After
conducting an investigation, the Employment Standards
Administration, Wage and Hour Division, concluded that the
complaint could not be substantiated, and Complainant filed a
timely appeal.  In May 1990, the ALJ ordered the parties to file
any preliminary motions in the case.  Respondent thereafter moved
for summary decision, the ALJ ordered Complainant to show cause
why the case should not be dismissed, and Complainant filed a
response.  In June 1990, the ALJ recommended that the complaint
be dismissed.

[PAGE 2]
     Under 29 C.F.R. § 18.40 (1994), an ALJ may enter
summary decision "if the pleadings, affidavits, material obtained
by discovery or otherwise, or matters officially noticed show
that there is not genuine issue as to any material fact and that
a party is entitled to summary decision."  Here, Respondent filed
no affidavits in conjunction with its motion, no discovery was
conducted, and the record otherwise contains only the barest of
allegations.  An examination of that record, however, reveals, at
the very least, the following issues of material fact:  (1)
whether the alleged discrimination in some manner is related to
or arises out of the employment relationship so that Complainant
is protected under the ERA as a former employee; [2]  (2)
whether, in conducting its discovery in the court proceeding,
Respondent engaged in any of the actions enumerated under 29
C.F.R. 
§ 24.2(b)(1994); [3]  and (3) whether Respondent took such
action because Complainant engaged in protected activity. 
Because the case presents genuine issues of material fact,
summary decision is not appropriate at this time.  Accordingly,
the case is remanded to the ALJ for further proceedings.
     SO ORDERED.




                               ROBERT B. REICH
                               Secretary of Labor

Washington, D.C.





[ENDNOTES]
           
[1]   The amendments to the ERA contained in the National Energy
Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24,
1992), do not apply to this case in which the complaint was filed
prior to the effective date of the Act.  For purposes of this
case, I will continue to refer to the provision as codified in
1988.

[2]   Under remedial legislation, the term "employee" is
construed broadly to include a former employee as long as the
alleged discrimination is related to or arises out of the
employment relationship.  Charlton v. Paramus Bd. of
Educ., 25 F.3d 194, 198-200 (3d Cir. 1994); Passer v.
American Chem. Soc'y, 935 F.2d 322, 330-331 (D.C. Cir. 1991);
E.E.O.C. v. J.M. Huber Corp., 927 F.2d 1322, 1331 and n.41
(5th Cir. 1991); E.E.O.C. v. Cosmair, Inc., L'Oreal Hair Care
Div., 821 F.2d 1085, 1088 (5th Cir. 1987); Rutherford v.
American Bank of Commerce, 565 F.2d 1162, 1165-1166 (10th
Cir. 1977); Dunlap v. Carriage Carpet Co., 548 F.2d 139,
147 (6th Cir. 1977).    

[3]   The regulation contemplates that an employer who
"intimidates, threatens, restrains, coerces, blacklists,
discharges, or in any other manner discriminates against" an
employee may have acted unlawfully.