in this case
arising under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851
(1982). The ALJ found the complaint untimely pursuant to Section
5851(b)(1). The parties were given an opportunity to file briefs
in support of or in opposition to the ALJ's recommended decision.
Respondent submitted a brief in support of the ALJ's decision;
Complainant did not respond.
Review of the filings before the ALJ support his findings
that Complainant was dismissed from her position on April 5,
1987, but did not file a complaint with the Department of Labor
until May 21, 1987, and his determination that the complaint was
untimely. There is nothing in any of Complainant's submissions
suggesting that she could present evidence at a hearing that
would warrant tolling of the 30 day statutory filing requirement
provided in the ERA and the regulations. 29 C.F.R. 24.3(b). Cf..
McGough v. U.S. Navy, ROICC , Case No. 86-ERA-18, Sec. Order,
June 30, 1988 (case remanded for hearing where "Complainant's
equitable arguments raise significant factual issues . . . . "
slip op. at 9). As the ALJ concluded, Complainant's assertion
that she was unaware of the reason for her termination is refuted
by her own letters of complaint to Transco's president and to the
Wage and Hour Division of the Department of Labor. In this
situation it was appropriate for the ALJ to dismiss the complaint
as untimely.
Accordingly, I accept the ALJ's recommendation and adopt and
append hereto his decision. The complaint in this case is
dismissed pursuant to 42 U.S.C. § 5851(b)(1) and 29 C.F.R.
§ 24.3(b).
SO ORDERED.
ELIZABETH DOLE
Washington, D.C.
[ENDNOTES]
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