DATE:  August 28, 1995
CASE NOS. 91-ERA-31
          91-ERA-34


IN THE MATTER OF

GEORGE M. GILLILAN,

          COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         DECISION AND REMAND ORDER
     Complainant, George Gillilan, filed these two complaints
pursuant to the whistleblower provision of the Energy
Reorganization Act of 1974, as amended, (ERA), 42 U.S.C. §
5851 (1988).[1]   After Gillilan requested hearings on each
complaint, the Administrative Law Judge (ALJ) issued an order
consolidating both cases.  Since the cases ultimately were
pursued and handled disjunctively, they are hereby severed for
decision.
     Prior to the hearing, Respondent, Tennessee Valley Authority
(TVA), filed a motion for summary judgment on those claims raised
in Case No. 91-ERA-31.  The ALJ granted TVA's motion and issued a
[Recommended] Order Granting Partial Summary Judgment (R. O.),
dated November 26, 1991.  On January 7, 1992, the ALJ issued a
Recommended Order of Dismissal for Case No. 91-ERA-34, under Rule
41(a)(1)(ii) of the Federal Rules of Civil Procedure.  The ALJ's
recommended decisions are now before me for review pursuant to 29
C.F.R. § 24.6(a) (1994).
Case No. 91-ERA-34
     After the ALJ issued his ruling on the summary decision
motion (91-ERA-31), the parties submitted a joint stipulation 
[PAGE 2]
requesting dismissal of the complaint in Case No. 91-ERA-34.  The
stipulation appears to meet the terms of Fed. R. Civ. P.
41(a)(1)(ii), which has been held applicable in these
circumstances, and accordingly, I dismiss Case No. 91-ERA-34
without prejudice.  Bauer v. Power Resources, Inc., Case
No. 94-ERA-10, Sec. Order, June 24, 1994, slip op. at 1-2; Galata
v. Tennessee Valley Authority, Case No. 91-ERA-0028, Sec.
Order, May 20, 1992, slip op. at 2.
 Case No. 91-ERA-31
     In this complaint, dated November 16, 1990, Gillilan alleges
that he has been subjected to "a continuous pattern and series of
acts" in retaliation for his reporting nuclear safety concerns
and in contravention of a settlement agreement reached in a
previous ERA case he filed against TVA.  As "example[s]" of
alleged retaliation, Gillilan included six specific acts: (1) his
assignment to the evening shift on October 15, 1990; (2) improper
handling of his service reviews; (3) failure to reinstate
seniority and overtime; (4) continuing failure to provide
requisite training, such as courses in elevator repair, crane
maintenance, and diesel generators; (5) insufficient credit and
payment for Nuclear Accreditation Bonus (NAB) qualifications;[2] 
and (6) continuing harassment and intimidation by a supervisor.  
     TVA argues that summary judgment is appropriate because the
claims are either untimely filed, not cognizable under the ERA,
or indisputably nondiscriminatory.  In support of its motion, TVA
submitted Gillilan's deposition and an affidavit of Edwin B.
Ditto, one of Gillilan's supervisors.  Gillilan opposed the
motion by submitting his own affidavit and emphasizing his
continuing violation allegation.  Gillilan claims that each of
the six claims are part of a continuing violation related to the
retaliatory loss of training opportunities.  He also alleges that
his previous attorney missed the filing deadline because he was
suffering from mental incapacity, which Gillilan asserts should
toll the statutory filing period.
     The ALJ found that Gillilan's first, third, fifth, and sixth
claims, and part of his fourth claim relating to training in
elevator repair, were untimely filed.  R. O. at 4.  He rejected
Gillilan's tolling argument, finding it unsupported by both the
law and the evidence.  Although the ALJ found that Gillilan's
second claim and the portion of his fourth claim relating to
training in crane maintenance and diesel generators were timely
filed, he concluded that Gillilan had not alleged facts that
support a rational inference, and prima facie case, of
retaliation.  As a consequence, the ALJ added, these timely
claims cannot be used to preserve the untimely claims under a
continuing violation theory.  After reviewing the parties'
submissions, I disagree with the ALJ's recommendation to grant 
[PAGE 3]
summary decision.
     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 TVA's motion to be granted,
there must be no disputed material facts and TVA must be entitled
to prevail as a matter of law.  Richter v. Baldwin Assoc.,
Case No. 84-ERA-9, Sec. Dec., Mar. 12, 1986, slip op. at 3.
     The non-moving party must present affirmative evidence in
order to defeat a properly supported motion for summary judgment. 
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 consist 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 Gillilan.  See OFCCP v. CSX Transp.,
Inc., Case No. 88-OFC-24, Asst. Sec. Dec., Oct. 13, 1994,
slip op. at 12.
     It is undisputed that Gillilan's first claim, that he was
unlawfully reassigned to the evening shift, was not filed within
thirty days of the date on which he received notice of the
reassignment, as expressly required under the ERA at that time. 
42 U.S.C. § 5851(b)(1).[3]   The time limits, however, are
subject to equitable modification.  Larry v. Detroit Edison
Co., Case No. 86-ERA-32, Sec. Dec., June 28, 1991, slip op.
at 12, aff'd, No. 91-3737 (6th Cir. Apr. 17, 1992); see
Rose v. Dole, 945 F.2d 1331, 1335-36 (6th Cir. 1991).
     The leading case on the issue of timeliness under the
whistleblower provisions at 29 C.F.R. Part 24 is School Dist.
of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981). 
In Allentown, at 19-20, 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),
a case decided under Title VII of the Civil Rights Act of 1964. 
Smith interpreted Supreme Court precedent as implying that
tolling might be appropriate only where the defendant actively
misled the plaintiff respecting the cause of action; or where the
plaintiff has in some extraordinary way been prevented from
asserting his rights; or has raised the precise statutory claim
in issue, but has mistakenly done so in the wrong forum.

[PAGE 4]
     There is authority, at least in some jurisdictions,
indicating that mental incapacity may fall within the
"extraordinary" circumstances category outlined in Smith. 
See, e.g., Moody v. Bayliner Marine Corp., 664 F.
Supp. 232, 235 (E.D.N.C. 1987).  Recently, the United States
Court of Appeals for the Sixth Circuit, relying on Moody
and Burton v. United States Postal Serv., 612 F. Supp.
1057, 1059 (D.C. Ohio 1985), held that if a plaintiff pursued his
claim diligently, yet was abandoned by his attorney due to his
attorney's mental illness, equitable tolling of the limitations
period may be appropriate under Title VII.  Cantrell v.
Knoxville Community Dev. Corp., Nos. 94-5033/94-5379, 1995
U.S. App. LEXIS 17458, 3 (6th Cir. Jul. 19, 1995).  The court
remanded to allow the plaintiff an opportunity to present
evidence of his attorney's mental state during the filing period. 
I will apply Cantrell to this case, which arises within
the appellate jurisdiction of the Sixth Circuit, and remand for
further consideration of the issue.  Although the ALJ stated that
no evidence regarding the attorney's mental state at the time of
the filing was presented, the record raises issues of material
fact regarding the attorney's capacity and Gillilan's
diligence.[4]   Consequently, it cannot be concluded at this
stage that Gillilan's complaint was untimely filed, and summary
decision is denied.  Furthermore, there are issues of material
fact regarding whether the reassignment was based on retaliatory
motives, either directly, or indirectly through tainted seniority
lists.
     In addition, Gillilan is alleging that his reassignment to
the evening shift was a continuation of harassment by his
supervisor, Harry Brown, which began in January 1990.  Since the
ALJ found the evening shift allegation untimely, he did not
consider Gillilan's harassment theory or whether a continuing
violation exists.  Viewing the evidence in the light most
favorable to Gillilan, there are issues of material fact
regarding whether, in retaliation for protected activity, Brown
intimidated Gillilan during a January 1990 electrical training
course; whether TVA then acted so as to affect Gillilan's NAB for
retaliatory reasons; and whether these events are sufficiently
linked to Gillilan's reassignment to the evening shift, again
under Brown's supervision, to constitute a continuing violation. 
See CSX Transp. Inc., slip op. at 21-26, discussing
Elliott v. Sperry Rand Corp., 79 F.R.D. 580, 585-86 (D.
Minn. 1978); see also English v. Whitfield, 858 F.2d 957,
963-64 (4th Cir. 1988) (retaliatory harassment theory is
cognizable under the ERA).  If on remand the ALJ determines that
the evidence supports tolling and jurisdiction to consider the
evening shift allegation, then he must consider the continuing
violation theory and whether it affects any relief available to
Gillilan.

[PAGE 5]
     The ALJ found that Gillilan's second claim regarding TVA's
delay in reissuing his service review rating was timely filed,
but that Gillilan failed to allege facts that would raise a
prima facie case of retaliation.  R. O. at 5-6.  I agree,
as clarified below.
     Under the terms of the parties' settlement agreement in Case
No. 89-ERA-40, which was signed on February 1, 1990, TVA agreed
to reissue Gillilan's service review for the period from December
1987 through May 1988, with a rating of "Better Than Fully
Adequate."  TVA reissued the service review on October 23, 1990,
less than thirty days before Gillilan filed this complaint. 
Gillilan alleges that TVA delayed in issuing the revised service
review as a further reprisal for his protected activities and
that during the period of the delay he was denied training
opportunities based on the original, improper rating.  TVA
contends that the delay was not adverse to Gillilan and further,
that the Secretary has no authority to adjudicate this claim,
which is tantamount to a breach of settlement claim.  The ALJ
agreed with TVA.  He viewed the claim as one to enforce the prior
settlement agreement and stated, "[t]he mere fact that
Complainant believes that Respondent acted with discriminatory
motive in delaying the reissuance of the service report, does not
convert this dispute from a breach of settlement claim to a
discriminatory act under the ERA."  R. O. at 6.
     Violation of a settlement may under some circumstances
constitute a separate, independent violation of the ERA. 
Blanch v. Northeast Nuclear Energy Co., Case No. 90-ERA-
11, Sec. Order, May 11, 1994, slip op. at 4; O'Sullivan v.
Northeast Nuclear Energy Co., Case No. 90-ERA-35, Sec. Order,
Dec. 10, 1990, slip op. at 3.  Here, however, there was no final
settlement agreement approved by the Secretary as required by the
ERA.[5]   Although TVA voluntarily reissued the service review,
it was not obligated to do so for purposes of the ERA. 
See Macktal v. Brown & Root, Inc., Case No. 86-ERA-
23, Sec. Dec., Oct. 13, 1993, slip op. at 6 n.3.  There is no
allegation or indication that reissuing Gillilan's service review
falls within the "terms, conditions, or privileges" of Gillilan's
employment, independent of the settlement agreement.  For these
reasons, the delay in reissuing the rating does not constitute an
adverse employment action within the purview of the ERA. 
Compare Grizzard v. TVA, Case No. 90-ERA-52, Sec. Dec.,
Sept. 26, 1991, slip op. at 2 (allegation that employer delayed
implementation of final EEOC order for retaliatory reasons
is within purview of ERA).
     To the extent that Gillilan is alleging another violation --
denial of training opportunities -- based on the same alleged
retaliatory policy or practice that he challenges in Case No. 89-
ERA-40, summary dismissal of the claim is appropriate.  Gillilan 
[PAGE 6]
raises no specific allegation of a retaliatory act within thirty
days prior to the complaint.  In fact, Gillilan points to no
specific training course for which TVA failed to schedule him
prior to this complaint.[6] 
     I note, however, that Gillilan alleged another violation
during his deposition which could render this complaint timely or
form a basis for relief.  In deposing Gillilan, TVA asked that he
describe "each and every one" of the alleged discriminatory acts
constituting the pattern and series of acts referred to in the
complaint.  Deposition (Dep.), dated June 5, 1991, at 5.  In
addition to the acts listed above in his November complaint,
Gillilan explained that on three different occasions, within one
year of his complaint, he had not been selected for the
limitorque valve crew.  Dep. at 9, 32.  Gillilan could only
speculate that one of the dates on which he was not selected was
"October, November of '90," Dep. at 33, apparently because TVA
never turned the information over through discovery.  See
Dep. at 34.  Thus, there is some indication that Gillilan may not
have had an opportunity for full discovery and that complete
discovery may produce a timely discriminatory act.[7] 
     Accordingly, Case No. 91-ERA-31 is remanded to the Office of
Administrative Law Judges (OALJ) for further proceedings,
including an evidentiary hearing.  In remanding this case, I
reach no conclusions, nor should any be inferred, regarding the
timeliness or the merits of the allegations.  On remand I direct
the Acting Chief ALJ first to review and decide whether to
consolidate this case with Case No. 89-ERA-40, which remains
pending before the OALJ.  29 C.F.R. § 24.5(b) (1994).
     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 complaints were
filed prior to the effective date of the Act.

[2]  The NAB is a bonus paid to those electrical maintenance
craftsmen who meet and maintain certain eligibility requirements. 
TVA's Brief at 9.

[3] 
 The amendments to the ERA changed the limitations period to 180
days.  See Section 1902(i) of Pub. L. 102-486.

[4]  In his affidavit Gillilan alleges that he raised the
complaint with his attorney on October 26, 1990, and then on
October 30, called to make sure the complaint had been filed. 
Gillilan alleges that the attorney was suffering from a manic-
depressive condition that caused him to miss the deadline.  There
is evidence, even in this meager record, of the attorney's
incapacity.  On June 10, 1991, the first date set for hearing,
the attorney suddenly abandoned Gillilan.  Although the attorney
conversed with Gillilan that morning, he later abruptly required
medical treatment; failed to appear at the hearing; and
disappeared for some period of time without notifying his office
or the ALJ of his whereabouts.  References concerning the
attorney's personal problems and his psychiatric physician were
made at that time.  See transcripts dated June 10 and 11,
1991, at 7, 17.  By June 17, the attorney was hospitalized for
"major depression."  See letters dated July 10, 1991, from
George Gillilan to the ALJ and from W.P. Boone Dougherty to
George Gillilan.  The attorney withdrew from the practice of law
in July 1991.

[5]  On April 12, 1994, I disapproved the settlement agreement
for purposes of resolving Case No. 89-ERA-40 because it made
sealing the record, which I cannot do, an essential and
nonseverable term.  The case was remanded for further
proceedings.  On November 29, 1994, I denied TVA's motion to
reconsider.

[6]  In finding that Gillilan had not stated facts which would
support a prima facie case with regard to training in
crane maintenance and diesel generators, the ALJ was persuaded by
TVA's argument that it treated Gillilan like other similarly
situated employees.  R. O. at 5-6.  However, a complainant need
not show that he was "treated differently from other similarly
situated employees" to establish a prima facie case of
retaliation.  DeFord v. Secretary of Labor, 700 F.2d 281,
286 (6th Cir. 1983); Artrip v. Ebasco Services, Inc., Case
No. 89-ERA-23, Sec. Dec., Mar. 21, 1995, slip op. at 9 n.4;
Helmstetter v. Pacific Gas & Electric Co., Case No. 91-
TSC-1, Sec. Dec., Jan. 13, 1993, slip op. at 9.  Inclusion of
such a requirement among the elements of a claim would take no
account of the possibility that more than one person might be
exposed to the same type of discrimination.  DeFord, 700
F.2d at 286.

[7]  A motion for summary judgment may be continued or denied if
the non-moving party has not had an opportunity to make full
discovery.  Celotex Corp., 477 U.S. at 326.