DATE: June 19, 1992

CASE NO: 91-ERA-12

In the Matter of

DOUGLAS E. BILLINGS
    Plaintiff

    v.

TENNESSEE VALLEY AUTHORITY
    Defendant

   On January 9, 1991, this Administrative Law Judge issued a Decision and Order recommending that the captioned case be dismissed with prejudice. On April 9, 1992, the Secretary of Labor issued an Order of Remand with directions for the Administrative Law Judge to follow the procedures outlined in 29 C.F.R. Section 24.5(e)(4). Accordingly, on April 16, 1992, an Order to Show Cause was issued pursuant to 29 C.F.R. Section 24.5(e) (4), directing the parties to show cause on or before May 15, 1992, why the captioned case should not be dismissed due to the failure of the Plaintiff, Douglas E. Billings, to comply with the Prehearing Order dated December 12, 1990, and for the reasons set forth in the Motion to Dismiss filed by the Respondent on December 20, 1990.

   Responses to the Show Cause Order have been filed by both the Plaintiff and Defendant and have been considered by this Administrative Law Judge in arriving at this decision. The Recommended Decision and Order dated January 9, 1991, is incorporated herein and made a part of this Recommended Decision and Order on Remand.

   The Plaintiff has responded to the Show Cause Order arguing against dismissal stating that this case was combined with four other cases which the Plaintiff had before the Secretary of Labor; that he had submitted a statement from his cardiologist and other medical data showing that the health of the Plaintiff was precarious and that the case should be held off until his health allowed him to continue; that he has not been given the rights afforded by the Fifth and Fourteenth Amendments to the Constitution and; that his claim has not been properly investigated by the Wage and Hour Division of the Department of Labor. Plaintiff requests that the case be remanded to the wage and Hour Division for a "proper investigation of the facts."

   The Defendant in its response arguing in favor of dismissal states that the Defendant's alleged activities are protected by the First Amendment; that the application of res judicata is required by common law and by statute; and that the Plaintiff's deliberate disregard for the prehearing order mandates dismissal.

   The Plaintiff is in error when he alleges that this case was combined with four other cases which he has pending before the Secretary of Labor and also when he states that he filed a statement from his cardiologist and other "medical reationale" in this proceeding stating that his health was precarious. This case was not consolidated with any other case pending before the Secretary of Labor and the Plaintiff did not file a letter from his cardiologist or any other medical "rationale" in this case as alleged. However, these were not factors in reaching the decision herein.

   I have reviewed the Plaintiff's response to the Show Cause Order and find that his response is not sufficient to prevent dismissal of this case. Plaintiff has given no reason for his failure to respond to the Prehearing Order and I find that this fact alone is sufficient cause for dismissal of his complaint. Additionally, the basis of his complaint was the subject of the complaints in 89-ERA-16 and 90-ERA-18 and further litigation is

barred by the principle of res judicata. Further, the basis of the complaint concerns contacts and discussions between TVA employees and other officials which come within First Amendment protections.

   For the reasons given herein and in the prior Recommended Decision and Order dated January 9, 1991, I find the Plaintiff's response to the Show Cause Order to be insufficient to prevent dismissal of this complaint.

   It is, therefore,

   ORDERED that the complaint of Douglas E. Billings is hereby DISMISSED WITH PREJUDICE.

       ROBERT L. HILLYARD
       Administrative Law Judge